The common misconception of CCWs is that they are “non-lethal”, “less than lethal” or “less lethal”, and therefore preferable to the use of more injurious means of dispersing a crowd. However, Lethal in Disguise shows that these weapons can often result in significant injuries, disability and even death. As a result, there is a pressing need for states to change their perceptions regarding CCWs and adopt more stringent rules around CCW use. There is also a pressing need to engage in further research and empirical studies to develop clear scientific standards and parameters to regulate CCWs and their use, and to further develop international law and standards.
In this section, we outline pre-deployment, deployment and post-deployment recommendations on CCWs in order to develop safe practices for their use. We also identify those weapons that serve no purpose for crowd control and should therefore be banned. In addition, we make recommendations on the implementation of international law and standards, and detail challenges in the implementation of these standards at the national level. We also highlight areas in which international law and standards need to develop.
Core principles and patterns of risk
The recommendations in this report are premised on several core principles that should be followed for police management of assemblies and for all uses of force. They expand on the existing principles and recommendations detailed in Lethal in Disguise 1.
- In the context of managing protests, the role of law enforcement officials is to protect the right to life and to facilitate rights of expression, association and assembly while ensuring public safety.
- The most effective method to prevent violence in the context of protests is to engage in negotiations and open a dialogue with protesters, and to deploy associated de-escalation techniques.
- The use of CCWs in protests should be an absolute last resort when dealing with genuine and imminent threats to safety, and should come only after all other means have been exhausted.
- The mere fact that an assembly may be considered unlawful under domestic law does not justify the use of CCWs.
- Where there are people in the context of protests who either engage in or incite others to engage in acts of violence which require police intervention, the explicit goal of any intervention should be to de-escalate the situation and, where needed, focus on targeted interventions.
- If CCWs are deployed in the context of protests, their use should always be based on the principles of legality, precaution, necessity, proportionality, non-discrimination and accountability, and the use of CCWs must be tested against the genuine threat faced and the legitimate aim pursued. Where any of these principles cannot be satisfied, CCWs should not be deployed.
- States should be required to investigate any injuries or deaths related to the use of CCWs to ensure accountability and to better train and educate law enforcement officials on the lethal effects of CCWs.
Patterns of risk
In addition to the core principles, certain patterns of risk emerge.
- First, the development of new CCWs and aggressive marketing by arms companies to policing institutions is, in some cases, driving demand. Not all of these newer weapons are adequately tested, and some have been specifically developed for military purposes. The marketing, trade and use of such weapons in the absence of demonstrated data on safety and effectiveness illustrates the problem of the unregulated proliferation of CCWs.
- Second, the presumption that CCWs are non-lethal has several consequences: first, that police and security personnel are not always trained in their proper use; second, that they are subject to fewer controls and regulations than weapons recognized as lethal; third, that law enforcement officers resort quickly to their use without trying other de-escalation techniques first or exhausting all other means; and fourth, that the cases of injury and death from their use are then not properly investigated.
- Third, some of the CCWs that are used in the management of protests are inherently inaccurate and indiscriminate in their effects, risking serious injury and death to the people targeted, other demonstrators, bystanders and law enforcement officers themselves.
- Fourth, the capacity of CCWs to achieve the goal of safe crowd dispersal is limited. The infliction of pain and incapacitation occasioned by CCWs is unlikely to result in the safe dispersal of protesters. On the contrary, the use of CCWs for crowd dispersal is often counterproductive, as they can cause confusion and panic, resulting in additional injuries as well as the escalation of violence.
- Fifth, CCWs can be intentionally misused as weapons for political repression rather than for legitimate crowd-control purposes.
INCLO and PHR with contributions from Omega Research Foundation propose a number of recommendations on all stages of CCW use from regulating manufacturing and transparency in their design, composition, and testing, to regulating trade and use, to promoting the reporting of all use of CCWs and seeking accountability for misuse.
With these recommendations we hope to reduce injuries, disabilities, and death caused by CCWs, to bolster international guidelines for the use of CCWs, to ensure protection of the rights to freedom of assembly, association, and expression, to seek accountability in cases of harm, and to develop safe practices for the occasions where these weapons are deployed.
The recommendations are based on two core principles: (1) protecting health and limiting injuries and (2) ensuring the exercise of free expression and assembly.
Design and trade
- CCWs and related equipment intended for use in the context of protests must be designed and produced in a way that ensures that they meet legitimate law enforcement objectives and comply with international law and standards. This duty applies to states and their agents, and also to companies that manufacture weapons for law enforcement, as it is recognized in the UN Guiding Principles on Business and Human Rights.
- All safety data sheets and any other relevant information should be provided by manufacturers and should be publicly accessible. Publicly available data should include each weapon’s design features and parameters with a view to facilitating medical treatment and public acceptance. Manufacturers should also identify and release all medical studies and the names of the experts who have contributed to safety analyses, indicating those who have received compensation for promoting their products.
Testing and legal review
- Testing of new and existing CCWs should not be left solely to manufacturers. States should ensure that CCWs are subject to a strict independent testing process prior to making procurement decisions. Testing, evaluation and approval should include a multidisciplinary approach that, in addition to law enforcement, includes policymakers, academics and civil society.
- Testing of CCWs should consider, among other aspects: legality, level of accuracy, risk of lethality, risk of serious injury or disability, level of pain inflicted, lifespan, reliability (i.e. minimal risk of malfunction) and any other relevant factors.
- A legal review should be conducted prior to procurement of a CCW, in order to determine whether the procurement and use of the CCW would, in some or all circumstances, be prohibited by any rule of international or domestic law, in particular human rights law. As part of the legal review, testing must:
- be conducted independently of the manufacturer and account for both the required and the potential capabilities and effects of the CCW;
- evaluate the effects of all reasonably, likely or expected uses of the CCW;
- be based on impartial legal, technical, medical and scientific expertise and evidence; and
- consider the potential effects of use on individuals who may be especially vulnerable, including pregnant people.
Regulations and training
- Regulations, procedures and/or protocols on the use of CCWs should be developed for law enforcement based on applicable domestic and international laws. Treaty obligations and international standards should be included and operationalized in the protocols. These should also reflect findings from independent testing. Law enforcement should not rely solely on manufacturers’ instructions.
Post-hoc procedures and accountability
- Law enforcement officials should record and report any use of CCWs, including specific models of CCWs deployed, the distances from the targeted individuals/bystanders and duration of deployment, the number of each type of CCW used, and documented or reported injuries caused by CCWs. The reporting must demonstrate that the use of CCWs was proportionate, necessary and legal.
- All cases of deaths, injuries and suspected misuse of CCWs should be thoroughly investigated by a body independent from the unit or department involved, with a view to establishing responsibilities and accountability of the officers involved, including the various levels of the command structure in charge during the incident. Where there is evidence of unlawful conduct, commanders and responsible officers should be liable to administrative disciplinary measures and/or criminal prosecution.
- States should engage with and support international and regional processes to develop trade controls, including the UN process on controls on the trade in tools of torture.