Legal Framework
The law on the use of force and crowd-control weapons
Over the six years since the publication of the first Lethal in Disguise report, there has been rapid development of international and regional laws and standards relating to the protection and promotion of rights of assembly and expression. These include new laws and standards regulating the development, testing, trade, use and misuse of crowd-control weapons (CCWs).
Underpinned by existing binding international instruments, these new laws and standards substantially strengthen rights of assembly and expression, as well as rules on the use of CCWs in protest contexts.
Most notably, the 2020 United Nations Human Rights Guidance on Less-Lethal Weapons in Law Enforcement (UN Guidance on LLWs), which INCLO and PHR helped inform, provides detailed guidance on the principles concerning the lawful use of CCWs, prohibitions on the use of certain CCWs and instructions on the lawful deployment of CCWs in both protest and custodial settings.
In addition, the UN Human Rights Committee – an authoritative body of legal experts mandated to monitor implementation of the International Covenant on Civil and Political Rights (ICCPR) – has produced two general comments, which, alongside various regional standards, give further guidance to states and policing institutions on the rights of assembly and expression of protesters and the lawful use of CCWs.
Despite this expansion of international legal standards, the implementation of these standards at the national level has been limited. Moreover, violations of human rights and civil liberties in protest contexts stubbornly persist, and in some instances have increased over the past six years.
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International human rights law
International human rights law creates the human rights obligations that states are obliged to respect, protect and fulfil. In the context of CCWs, the internationally recognized rights to life and to freedom from torture or ill treatment play foundational roles in the development of instruments that regulate the use of force and CCWs, as do rights of assembly and expression contained in international conventions and treaties.
These rights work by placing an obligation on law enforcement officials to respect and protect life during their operations, and to respect, protect and fulfil rights of assembly and expression.
The right to life is recognized in article 6.1 of the ICCPR, among other treaties. The right to freedom from torture or ill treatment is recognized in article 7 of the ICCPR, and is further expounded upon in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In addition, the ICCPR, which constitutes binding international law on states parties, guarantees the rights of expression, assembly and association in articles 19, 21 and 22. These rights are equally provided for in binding regional treaties, and place an obligation on law enforcement agencies to protect life and prohibit the excessive use of force during their operations. Additional instruments, like the UN Guidance on LLWs, expand on this duty by regulating the use of force and CCWs.
International standards and best practices
A series of codes of conduct, basic principles, general comments and guidelines have been developed which apply directly to questions on the use of force, and to CCWs in particular.
The UN Code of Conduct, adopted by the General Assembly of the United Nations in 1979, is recognized as one of the foundational instruments on the use of force by law enforcement agencies. It defines law enforcement agencies as including all officers of the law who exercise police powers, including military authorities and state security forces when exercising police powers.
In addition to the UN Code of Conduct, the UN Basic Principles, adopted in 1990, is also recognized as one of the foundational instruments on the use of force.
It recognizes the important role that law enforcement agencies play in the protection of the right to life, liberty and security of the person, and requires that governments adopt and implement into domestic law rules concerning the use of force. The Basic Principles includes specific reference to CCWs.
General comment No. 36 on Article 6 of the ICCPR: right to life
More recently, the UN Human Rights Committee (HRC) published in 2018 its General comment No. 36, which elaborates on the right to life in the ICCPR. General comments constitute the treaty body’s authoritative interpretation of its respective human rights treaty provisions, and are intended to give expert guidance on the fundamental rights contained in the ICCPR and other binding international treaties.
Regarding CCWs, the general comment notes that they must be subject to strict independent testing and evaluation in order to monitor their impact on the right to life. It specifically cites weapons, such as electro-muscular disruption devices (electronic control devices like tasers), rubber or foam bullets, and other attenuating energy projectiles (such as KIPs), which are designed for use or are actually used by law enforcement officials, including soldiers charged with law enforcement missions.
Notably, the general comment provides that the use of CCWs must be restricted to law enforcement officials who have undergone appropriate training, and must be strictly regulated in accordance with applicable international standards, including the Basic Principles. Furthermore, CCWs must be employed only subject to strict requirements of necessity and proportionality, in situations in which other less harmful measures have proven to be or clearly are ineffective to address the threat.
General comment No. 37 on Article 21 of the ICCPR: right of peaceful assembly
In 2020 the HRC produced General comment No. 37, which elaborates on the right of peaceful assembly in the ICCPR. It states that the right of peaceful assembly is important in its own right, but also constitutes the foundation of participatory and democratic systems, and is a tool to recognize many other rights. It constitutes an individual right that is exercised collectively. Inherent in the right is an associative element, but the right applies to individuals, and law enforcement officials must be cautious about viewing individual protesters as a group.
The primary international law document on CCWs is the 2020 UN Guidance on LLWs. While technically non-binding, it was published by the Office of the United Nations High Commissioner for Human Rights and was prepared by an international group of experts.
It was informed by an extended and broad public participation process carried out under the auspices of the Geneva Academy and the University of Pretoria, which included states, academics and academic institutions, policing institutions, civil society organizations and activists. INCLO and PHR were actively involved in this process, based on our research in Lethal in Disguise 1. As a result, the UN Guidance on LLWs is highly persuasive and consolidates up-to-date and comprehensive international thinking on the development, testing, deployment, use and trade of CCWs.
The UN Guidance on LLWs acknowledges the lack of clear directives concerning the deployment of CCWs in compliance with human rights law, and aims to supplement existing standards codified in the UN Code of Conduct and the UN Basic Principles. It does so by providing direction on the responsible and lawful use of CCWs, and stipulates the circumstances under which such weapons may be deployed. It also goes beyond the use of CCWs and provides guidance on their design, production, procurement, testing and training. It applies to the acts of all law enforcement officials at all times, including during counterterrorism activities, extraterritorially and during instances of internal disturbance including riots and acts of violence. It further applies to military personnel when they are acting in the capacity of law enforcement officials.
The UN Guidance on LLWs reaffirms the principle that all law enforcement officials must respect and protect fundamental human rights, particularly in circumstances that may require the use of force.
It provides that force be used as a last resort, after using non-violent means and only if alternative measures appear ineffective. Any use of force must comply with the principles of legality, precaution, necessity, proportionality, non-discrimination and accountability.
Regional and national standards and best practices
In addition to international law and legal standards, regional organizations such as the African Union (AU) and the Inter-American Commission on Human Rights have binding human rights treaties and standards on the use of force and CCWs, which should be read alongside international law and standards. Africa and the Americas present some notable examples, and are detailed below for illustrative purposes.
In Africa, the right to life and related rights are detailed in the 1980 African Charter on Human and Peoples’ Rights (Banjul Charter). The African Commission on Human and Peoples’ Rights (African Commission), which is the organ of the AU responsible for monitoring the implementation of the Banjul Charter, has issued a series of resolutions on the use of force and CCWs. In 2017, it also published Policing Assemblies in Africa: Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa (African Commission Guidelines), a precursor to the UN Guidance on LLWs.
Resolution 281 from 2014 on the right to peaceful demonstrations mandates states to comply with the UN Code of Conduct and the UN Basic Principles, and expressly notes concerns with increasing levels of sexual violence against women protesters, including cases of rape and sexual assault during protests. It calls on states to refrain from the disproportionate use of force against protesters and to conduct impartial and independent investigations into all human rights violations to ensure that all perpetrators are held accountable.
Resolution 375 from 2017 urges states to ensure that their “domestic laws on the use of force by law enforcement officials are in line with regional and international standards” and to provide law enforcement officials with “appropriate personal protective equipment and weapons less likely to cause an injury than firearms.”
Resolution 474, the most recent statement on the use of force which was issued in 2021 during the COVID-19 pandemic, reaffirms that law enforcement officials must comply with the principles of legality, necessity, proportionality, and accountability and must not endanger human life.
In addition to these resolutions, the African Commission Guidelines provide clear guidance on the use of CCWs and note that “less lethal weapons, designed for the purposes of crowd control, may be abused by law enforcement officials who presume that such weapons are never lethal.”
In addition to international law and legal standards, regional organizations such as the African Union (AU) and the Inter-American Commission on Human Rights have binding human rights treaties and standards on the use of force and CCWs, which should be read alongside international law and standards. Africa and the Americas present some notable examples, and are detailed below for illustrative purposes.
In the Americas, the right of peaceful assembly is recognized in various treaties and other human rights instruments, including article 21 of the American Declaration of the Rights and Duties of Man and article 15 of the American Convention on Human Rights. Following these treaties, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have developed a series of standards – and a body of jurisprudence – to protect the right of peaceful assembly.
Both the Commission and the Court have recognized that protest is linked to the promotion and defence of democracy as a form of expression, participation and demand for the guarantee of political, economic, social and cultural rights. Also, the Inter-American Commission’s Special Rapporteur for Freedom of Expression has recognized that states have different sets of obligations under the right to assembly: the obligations to respect, protect and facilitate, and the obligation to guarantee.
Regarding the use of force and CCWs, a 2019 report by the Inter-American Commission’s Special Rapporteur notes that, “The use of public force can be an important element in ensuring the right to protest and protecting the safety of demonstrators. On the other hand, it can also give rise to major violations of these same rights.” Therefore, the use of force must be exceptional and justified by satisfying the principles of legality, absolute necessity and proportionality.
The Inter-American Commission has also called for the introduction and use of tests related to the acquisition and incorporation of new CCWs and types of ammunition. These tests would be based on criteria provided by multidisciplinary and independent experts, would incorporate detailed regulations covering these weapons and would require specific training for agents in the appropriate use of each specific weapon. Finally, the Inter-American Commission notes that special attention should be paid to the development of new technologies in this area, such as remotely operated devices.
Case studies
Implementation of the law
Israeli police officers detain a Palestinian demonstrator during a protest against the planned evictions of Palestinian families in the Sheikh Jarrah neighborhood of east Jerusalem, Tuesday, May 4, 2021. Mahmoud Illean | AP Photo
A woman cuts her hair during a protest against the death of Iranian Mahsa Amini, in Istanbul, Turkey, Sunday, Oct. 2, 2022. Emrah Gurel | AP Photo
Experiences from the field
While standards on the use of force and CCWs in protest contexts are laid out in international and regional law and standards and, in some cases, integrated into national regulations, our research indicates that there is a significant gap between these legal frameworks and their implementation on the ground by law enforcement officials.
Experts in all 18 countries studied for this report noted that there are international and regional instruments and constitutional, federal, state and local regulations which protect the right to life, along with rights of expression, assembly and association. The experts cited the importance of these laws as the foundation for their advocacy and litigation work. At the same time, many interviewees reported frequent restrictions on freedom of assembly in implementing the protections as they are written. In fact, the vagueness of applicable laws has at times been leveraged to strengthen policing powers.
According to many experts, the most common justifications for deeming protests “unlawful” include an alleged risk to public safety and the possibilities of property damage or blocking traffic. The extent to which protests are prevented therefore depends largely on local authorities, bylaws and city ordinances.
As one expert noted, “In many places, the landscape is ‘piecemeal’, making enforcement challenging.” In general, there are “major issues with anti-riot bills. They are too broad, as they can arrest people for just being in a group; also, it doesn’t require violence but the threat of violence so it is very much a judgement call for police; it comes into issues of declaring an assembly unlawful.”
According to the experts interviewed for this report, the use of national security, anti-terrorism or anti-hate-speech laws has also been co-opted to restrict protest rights. One respondent noted that, “Over the past four to six years, there has been a shrinking of civic space. Over time, the challenge has been to ensure that good pieces of legislation are actually enacted. The card of national security is used to trump people’s rights.” Another said, “National security [is used] as an excuse over the right to freedom of expression, exacerbated by a history of terrorist attack.”
Experts note that there is a fine needle to thread between true hate speech that might require limitations and the use of these same laws as a pretext to curb free speech.
Select case law on the use of force in protest
Case
Court
CCW
Shmorgunov v Ukraine (2021) (ECHR)
European Court of Human Rights
BatonsDisorientation DevicesKinetic Impact Projectiles
Overview
The applicants participated in a vigil and were unarmed. Police officers surrounded and attacked the protesters by hitting them with rubber and plastic batons. The police officers also used tear gas and stun grenades to disperse the protesters.1
Outcome
The protesters offered little to no resistance to the police during efforts to disperse them. As a result, the physical force used against the protesters was not strictly necessary and amounted to ill treatment, but it did not rise to the definition of torture.2
1. Shmorgunov and others v. Ukraine Applications nos. 15367/14 and 13 others (2021) ECHR, available at: https://policehumanrightsresources.org/shmorgunov-and-others-v-ukraine-applications-nos-15367-14-and-13-others.at para 46-48
2. Id at para 521.
Zakharov v Varzhabetyan (2020) (ECHR)
European Court of Human Rights
Batons
Overview
Both applicants participated in a political rally where the first applicant was the organiser. The rally was dispersed by police officers, resulting in the first applicant being injured using a rubber baton, which rendered her unconscious. She was later diagnosed with a contused wound of the frontal lobe. The second applicant sustained a head injury and had a soft tissue bruise to the right side of her head.3
Outcome
The Court held that the use of force during political rallies is not prohibited but should not be excessive. In addition, the Court held that the use of force against the protesters was unnecessary, diminished their dignity and was degrading. As a result, the conduct of the police officers violated Article 3 of the Convention, the prohibition against torture.3
3. Zakharov and Varzhabetyan v. Russia Applications nos. 35880/14 and 75926/17 (2020) ECHR, available at: https://policehumanrightsresources.org/zakharov-and-varzhabetyan-v-russia-applications-nos-35880-14-and-75926-17 para 4-12.
4. Id at para 69.
Guzman v Spain (2020) (ECHR)
European Court of Human Rights
Batons
Overview
The applicant participated in a spontaneous protest that occurred after the conclusion of an official demonstration. She was struck down with a baton by a police officer after refusing to put down a placard. While protecting her head, the applicant sustained injuries to her mouth and left hand.5
Outcome
The spontaneous protest was dispersed, despite it being peaceful. This amounted to a disproportionate interference with the applicant’s rights under Article 11 of the European Convention, the right to freedom of assembly and association. In addition, the use of force was both disproportionate and unjustified.6
5. Laguna Guzman v. Spain Application no. 41462/17 (2020) ECHR, available at: https://policehumanrightsresources.org/laguna-guzman-v-spain-application-no-41462-17 at para 14.
6. Id at para 55.
Saghatelyan v Armenia (2018) (ECHR)
European Court of Human Rights
Batons
Overview
The applicant was arrested while camping at a protest. Prior to the applicant’s arrest, police officers encircled the camp and beat sleeping demonstrators with rubber batons.7
Outcome
The applicant’s right to freedom of assembly and association was interfered with, and the use of force was unjustified, excessive and without warning.8
7. Mushegh Saghatelyan v. Armenia Application No. 23086/08 (2018) ECHR, available at: https://policehumanrightsresources.org/case-of-mushegh-saghatelyan-v-armenia-application-no-23086-08 at para 12.
8.Id at para 248.
Thakur v State of Jammu & Kashmir (2016) (India)
Supreme Court of India
BatonsChemical irritants
Overview
A group of 2,000 migrants marched peacefully to Delhi to express concerns about their living conditions. The group, which included women, children and older people, was stopped en route and detained for five days by being forced to sit on the road. On the fifth day, the group was beaten with lathis9 in a most “brutal and barbaric manner” by police officers near Katra in Jammu and Kashmir. Tear gas was also dispersed.10
Outcome
The continued use of force by the police officials even after the demonstrators were immobile was unnecessary and an abuse of power.11
9. A long, heavy iron-bound bamboo stick.
10. Anita Thakur and Others v. State of Jammu & Kashmir No. 118 of 2007 (2016) Supreme Court of India, available at: https://main.sci.gov.in/jonew/ropor/rop/all/855673.pdf at para 1.
11. Id at para 14.
Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2551/2015 (CCPR/C/130/D/2551/2015) State party: Kazakhstan (2015) (UNHRCtte)
UN Human Rights Committee
Overview
A journalist from an internet newspaper was sent to report on a spontaneous protest in front of Kazakhstan’s parliamentary building. When police arrived, the journalist showed them his credentials and proceeded to report on the protest. After the protest, the police arrived at the home of the journalist and took him to a specialized court for committing an administrative offence.12
Outcome
The committee noted that the journalist’s right to the freedom to impart information and ideas was interfered with unjustifiably.13
12. Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2551/2015 (CCPR/C/130/D/2551/2015) State party: Kazahkstan (2020) available at: https://policehumanrightsresources.org/views-adopted-by-the-committee-under-article-5-4-of-the-optional-protocol-concerning-communication-no-2551-2015-ccpr-c-130-d-2551-2015-state-party-kazahkstan at para 2.1.
13. Id at para 10.3.
Yasa v Turkey (2013) (ECHR)
European Court of Human Rights
Chemical irritantsLaunchers
Overview
The applicant sustained a nose injury while passing by a dispersal of protesters by police. The applicant’s injury was caused by a tear gas grenade fired by the police.14
Outcome
The use of launchers for tear gas grenades can cause severe injury or death. Launching the tear gas grenade on a direct, flat trajectory and not at a high angle is inappropriate police conduct because of its potential fatal impact.15
14. Abdullah Yasa v. Turkey Application no. 44827/08 (2013) ECHR, available at: https://policehumanrightsresources.org/abdullah-yasa-v-turkey-application-no-44827-08 at para 6-7.
15. Id at para 42-48.
Güneş v Turkey (2012) (ECHR)
European Court of Human Rights
BatonsChemical irritants
Overview
The applicant and his colleagues assembled peacefully outside an underground station to issue a press release. Police officers approached the unarmed group, detained them and thereafter sprayed tear gas directly at their faces and beat them with batons.16
Outcome
The use of tear gas in the circumstances was unjustified, as it was fired in a confined space and after the applicant had already been detained. The spraying of tear gas posed serious health risks and subjected the applicant to inhumane and degrading treatment in terms of Article 3 of the European Convention.17
16. Ali Güneş v. Turkey Application no. 9829/07 (2012) ECHR, available at: https://policehumanrightsresources.org/ali-gunes-v-turkey-application-no-9829-07 at para 8-10.
17. Id para 41-23.
Andreou v Turkey (2010) (ECHR)
European Court of Human Rights
Live ammunition
Overview
The applicant was shot and injured during protests at the Turkish-Cypriot ceasefire line when soldiers fired weapons with live ammunition into a group of protesters.18
Outcome
The force used against the applicant was unjustified because the applicant was not carrying any weapons and it was unnecessary to cause harm to her. In addition, “firing of [live] rounds into the crowd constituted a disproportionate use of force in the circumstances”.19
18. Andreou v. Turkey Application no. 45653/99 (2010) ECHR, available at: https://policehumanrightsresources.org/andreou-v-turkey-application-no-45653-99 at para 11-13.
19. Id at para 55-58.
Ataman v Turkey (2008) (ECHR)
European Court of Human Rights
Chemical irritants
Overview
The applicant participated in a protest and was arrested for posing a threat to public order. The applicant and the other demonstrators were sprayed in the face with pepper spray.20
Outcome
The conduct of the officers was in violation of Article 11 of the European Convention, which protects freedom of assembly. In addition, “where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings”.21
20. Oya Ataman v. Turkey 74552/01 (2007) ECHR, available at: https://policehumanrightsresources.org/oya-ataman-v-turkey-74552-01 at para 5-10.
21. Id at para 33.