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Monitoring and Investigating Excessive Use of Force

          
          Monitoring and nvestigating
          Excessive Use of Force
          Amnesty International and CODESRIA
          Amnesty International
          Council for the Development of
          Social Science Research in Africa
        
          
          © Amnesty International and CODESRIA 2000
          Amnesty International Dutch Section, Keizersgracht 620, P0 Box 1968,1000
          BZ Amsterdam, The Netherlands
          Council for the Development of Social Science Research in Africa
          Avenue Cheikh Anta Diop Angle Canal IV, BP 3304 Dakar, Senegal
          ISBN 2 86978-09G7
          Cover painting designed by Lawson B. Sworh
          Printed in Great Britain by Russell Press Ltd, Basford
          Distributed by
          Amnesty International Dutch Section, Keizersgracht 620, P0 Box, 1968,
          1000 BZ Amsterdam, The Netherlands
          Fax: 31 02G624 08 89 Email: amnesty@amnesty.nl
          web site: www.amnesty,nl
          and
          African Books Collective, 27 Park End Street, Oxford, OX1, 1HU UK
          Fax: 44 0 1 865 793298 Email: abc@dial.pipex.com
          web site: www.africanbookscollective.com
          Editorial Advisory Committee
          Sulaiman Adebowale
          Agnes Callamard (Writer)
          David Anthony Chimhini
          Aminata Dieye
          Casey Kelso
          Bruno Lokuta Lyengo
          Kathurima M'Inoti
          Carolyn Norris
          Ebrima Sail
          Rojatu S. Turay Kanneh
          Peter van der Horst (Project manager)
        
          
          Contents
          I. Definition and examples of excessive use of force
          1 When can law enforcement officials use force? .... . ...... . ....... . ....... . ....... . ........ 5
          2. So what does “excessive” mean 7 7
          3. When can law enforcement officials use firearms? 9
          4. What about demonstrations 7 11
          5. What should happen after an alleged case of excessive use of force 7 14
          How to monitor excessive use of force
          1. Collect legal information 15
          2. Collect information on the security forces 16
          3. Record and follow up individual cases 18
          Sample form for recording information on excessive use of force ............ 19
          4. Identify patterns 24
          IlL How to conduct fact-finding
          1. Preparing for the investigation: Get the facts ........................................... 25
          2. Going to the scene and other locations 25
          3. Preparing before monitoring a public demonstration or assembly 27
          4. Identify the main sources or information and evidence 28
          IV. How to assess information
          1. Reliability of the initial source 31
          2. Consistency with patterns 31
          3. Consistency of medical evidence [[[ . 31
          4. Reliability of the testimonies 31
          5. Assessing the responsibility of the government 32
          Annexe One: Key questions guiding the investigation and assessment ...... 33
          Annex Two: Principle of proportionality 37
          Annex Three: Some international and regional standards 40
          Annex Four: Basic principles on the use of force and firearms by law
          enforcement offici                                                         
        
          
        
          
          L Definft on and examp es of excess ve use of force
          1. When can aw enforcement offic a s use force?
          Under exceptional circumstances only
          Law enforcement officials throughout the world may have
          to use force in the course of their duties. But unlike many
          of the activities for which law enforcement officials are
          responsible (e g. traffic control, conducting an arrest, etc ),
          the use of force should always remain exceptional.
          As a matter of fact, the use of force by law enforcement
          officials is strictly regulated and limited, or ought to be,
          by domestic laws, Such laws may differ from one country
          to the next, and you should make yourself familiar with
          them.
          The international community has also sought to
          establish general principles that should be observed by law
          enforcement officials throughout the world and that may
          guide the regulations established by domestic law. These
          principles are embodied in two documents: the United
          Nations Code of Conduct for Law Enforcement Officials
          (1978) and the UN Basic Principles on the Use of Force
          and Firearms by Law Enforcement Officials (1990).
          According to these international standards, force of any
          kind should only be used exceptionally: in other words,
          the use of force should not be the norm but the exception.
          Law enforcement officials may use force only:
          • when strictly necessary
          • to the extent required for the performance of their
          duty, including
          to prevent crime
          > to effect or assist in the lawful arrest of suspected
          offenders
          • after all non—violent methods available have been used
          hut have remained ineffective
          The use of force beyond these limits is characterised as
          “excessive”.
        
          
          UKWELJ: Mon tonng and DocumenUng Human RHghts VHo at ons n Afnca
          Lefs look at the various elements composing this
          definition:
          • strictly necessary: A possible way to interpret this
          expression is the following: it is reasonable to assume
          that, under the circumstances, law enforcement
          officials had no alternati e but to use force. No force
          going beyond that may be used.
          • to the extent required for the performance of
          officers' duties: These duties include: to present
          crimes, to effect a lawful arrest. Broadly speaking, a
          crime may be defined as all those activities prohibited
          by criminal law, It should be the responsibility of the
          law enforcement officials to demonstrate that the
          activities they were trying to prevent constituted a
          “crime” in accordance with the law in force in the
          country. Conducting an arrest will be lawful if the
          required procedure has been followed, such as, in many
          cases, obtaining an arrest warrant.
          • after all non violent methods have been tried:
          this is pretty straightforward. Non violent methods
          may include: spending time trying to convince someone
          to surrender or to stop acting in an unlawful way,
          talking to individuals, etc. All such methods should
          be included in internal guidelines or regulations
          regarding policing or security operations.
          Some national states and NGOs have sought to define the
          limits imposed on the use of force through the principle
          of proportionality. (See Annexe One for details.)
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          ExcessHve Use of Force
          2. So what does “excessive” mean?
          The use of force may be described as “excessive” when it
          will go beyond the limits identified by the above principles,
          that is:
          When the law enforcement officials' objectives were
          unlawful.
          Example: In the course of the arrest of Mr Tambo, the
          three police officers involved broke his arm. The police
          officers had broken into Mr Tambo's house. When he
          requested to see their warrant, he was thrown to the floor
          and kept there with his arms held behind his back. He
          suffered a broken arm as a result of the violence used.
          According to the human rights organisation that
          investigated the incident, the police officers had no basis
          for breaking into Mr Tambo's house, arresting him and
          using force against him. Mr Tambo was later released
          without any charges. He filed a complaint against the
          police officers the same day, alleging unlawful arrest and
          excessive use of force. The case is currently pending in
          court,
          When the offence committed was not serious enough
          to mandate such a strong reaction on the part of the
          authorities, or did not constitute an offence at all
          under national criminal law or international human
          rights principles.
          For instance, the use of force will be characterised as
          excessive if a suspect is offering no or little resistance to
          the law enforcement officers, or if the force used by the
          police officers is “too much” in relation to the situation,
          the nature of the offence and the resistance encountered.
          Example: On 8 July, Mr Flomo was arrested for a
          speeding offence. He was so badly beaten by the officers
          who arrested him that he had to spend several weeks at
          the hospital, suffering from concussion and a broken leg.
          The police maintained that Mr Flomo resisted arrest and
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          UKWELJ: Mon tonng and DocumenUng Human RHghts VHo at ons n Afnca
          that they had no other ways available to proceed with
          the arrest. But Mr Flomo was unarmed, and he was
          alone. He also denied resisting arrest. His case was
          brought to court. The judge ruled that even if Mr Flomo
          had, indeed, resisted arrest, the extent and the nature
          of the beating was clearly unwarranted and
          disproportionate to the nature of the offence and the
          circumstances.
          When law enforcement officials did not try to use all
          other non violent or less violent means available to
          them.
          Example: On 6 September, Mr Omoni, heavily drunk,
          was behaving in an aggressive manner on the street.
          According to eyewitnesses, the two police officers called
          on the scene immediately wrestled Mr Omoni to the
          ground and held him by the neck for a long period of time.
          Mr Omoni died a couple of hours later, in the police
          station. According to the autopsy performed later, Mr
          Omoni s death resulted from the restraining technique
          used by the law enforcement officers.
          When domestic laws, internal regulations, or
          superior's instructions have failed to identify the
          limits for the performance of law enforcement
          officials' duties,
          Example: According to human rights organisations and
          medical doctors, the restraining technique used against
          Mr Omoni (see case above) should be outlawed because
          it causes unnecessary suffering and may result in the
          death of the offender. Following Mr Omoni's death and
          two previous ones in the last five years resulting from
          the use of this technique, several organisations have
          formally requested that the state intervene and impose
          strict limits on the use of this technique by law
          enforcement officers.
          When law enforcement officials did not abide by the
          procedures established by domestic laws, internal
          regulations, or their superiors.
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          ExcessHve Use of Force
          Example: Three police officers were suspended from
          duties yesterday, following allegations that they used
          pepper spray against Ms Odengu, whom they were
          trying to remove from a bar where she was causing a
          disturbance. The use of pepper spray has been outlawed
          by a court order because of the extent of the suffering it
          causes.
          When domestic laws, internal regulations or
          instructions from superiors encourage or allow the
          use of force when it is reasonable to assume that it
          should not be used.
          Example: By order of the Head of State, the police force
          has been instructed to use any means necessary to
          ensure that the mining workers, striking for safer work
          conditions, are removed from the road leading to their
          factory where they have been demonstrating for the last
          24 hours.
          Example: Many cases of excessive use of force are
          reported in circumstances involving security forces
          whose officers had not been trained, or had not recei ed
          the appropriate training, or were not trained or meant
          to address certain situations: for instance, sending
          military forces to deal with civilians or crowd control.
          3. When can aw enforcement offic a s use firearms?
          The use of firearms is among the most potentially deadly
          type of force. This is why, again, the international
          community has developed principles to regulate their use
          by law enforcement officials: the UN Basic Principles on
          the Use of Force and Firearms by Law Enforcement
          Officials (1990).
          a. The principles
          • The use of firearms is considered as an extreme measure
          and every effort should be made to exclude their use
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          • Firearms should only be used after less extreme
          measures have been used but have not been successful
          • Firearms should only be used for the following
          purposes
          in self defence or the defence of others against an
          imminent threat of death or serious injury
          to prevent particularly serious crime involving
          grave threat to life
          to arrest a person who poses a grave threat to life,
          who resists authority or attempts to escape
          • The use of firearms should not be lethal: Law
          enforcement officers are required to use firearms in a
          manner which minimises injury and respects human
          life: intentional lethal force is only permitted when
          strictly unavoidable in order to protect life .
          • The use of firearms beyond these limits is
          characterised as “excessive”.
          b. The investigation
          Broadly speaking, investigation on the use of firearms may
          focus on two main issues: the methods used and the
          purposes.
          The focus on methods used requires us to consider:
          • what happened before the law enforcement officials
          used their firearms and whether they tried to use other
          (less lethal) methods
          • the type of weapon used
          • how it was used: Le. did law enforcement officials
          appear to aim at the offenders' vital organs?
          The focus on the purposes requires us to consider whether
          anyone s life was at risk, be they: the law enforcement
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          ExcessHve Use of Force
          officials themselves, other individuals at the scene (e g.
          passers by), individuals who were not on the scene but
          whose life may have been at risk (for instance, if the
          suspects were to evade arrest).
          Let's consider the case described below. While the use of
          firearms may have been legitimate from the perspective
          of the purpose (especially considering that many people
          had already died and more were likely to die because of
          the inter communal conflict), the methods used by the law
          enforcement officials were clearly excessive and
          disproportionate as compared to the objectives of the
          security forces (maintaining peace and order). They do not
          appear to have attempted to use other methods or
          weapons, and they relied on weapons which are
          indiscriminate by their nature and effects.
          Example: On 9 August 1996 violence resulting from an
          inter communal conflict between the villages of Bambui
          and Fungie in Mezam division resulted in the deaths of
          several people and serious injuries to many others. The
          following day, gendarmes from Bamenda were reported
          to have intervened in Bambui, firing shots and grenades
          indiscriminately at a large crowd gathered at the palace
          of the Fon of Bambui, a traditional ruler. Three people
          were reported to have been killed: Juliana Munu, 60, who
          died instantly from a shot to the head; Anita Nyengweh,
          25, who died later in hospital, and Ache Alah, 24, who
          died in hospital.
          4. What about demonstrat ons?
          a, The overall principle
          You should first remember that everyone has the right of
          freedom of peaceful assembly and association. These are
          human rights guaranteed by international human rights
          law.
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          b. Lawful demonstration
          Whether an assembly is lawful depends on the regulations
          in the country and on the steps undertaken by the
          organisers to abide by these regulations. If they have taken
          such steps and the authorisation has been given, then the
          assembly is lawful.
          Under such circumstances, the limits imposed on the use
          of force are exactly the same as those identified above.
          c, Unauthorised demonstration
          A demonstration will be characterised as unlawful by state
          officials if the authorisation for assembly is required by law
          and has not been granted.
          • The permission for an assembly may be denied by state
          officials on a number of grounds, such as that the
          assembly may constitute a threat to national security,
          or endanger the safety, or health, or freedoms of
          others.
          • But, quite often, a permission to demonstrate may be
          rejected by state officials because of what the demon-
          strators are calling for. By rejecting the demand for
          assembly, the government may commit a human rights
          violation, Le. it may violate the right to freedom of
          peaceful assembly and the right to freedom of
          expression.
          • In all cases, whether the denial of the permission for
          assembly was legitimate or not, the use of force to dis-
          perse unlawful assemblies is limited. The international
          principle governing the use of force in such
          circumstances (Principle 13 of the Basic Principles on
          the Use of Force and Firearms) states:
          In the dispersal of assemblies that are unlawful but
          non violent, law enforcement officials shall avoid the
          use of force or, where that is not practicable, shall
          restrict such force to the strict niinimnuni necessary.
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          ExcessHve Use of Force
          d. What about violent demonstrations?
          Again, the principles identified in the above three sections
          still hold: the use of force and the use of firearms must be
          exceptional and strictly limited.
          • However, law enforcement officials are more likely to
          be placed in a situation where they have to conduct
          arrests and use force than if they were dispersing a
          peaceful assembly or arresting an unarmed individual.
          • The international principle (Principle 14 of the Basic
          Principles on the Use of Force and Firearms) states:
          In the dispersal of violent assemblies, law
          enforcement officials may use firearms only when
          less dangerous means are not practicable and only
          to the minimum extent necessary. Law enforcement
          officials shall not use firearms in such case, except
          under the circumstances highlighted above,
          Example: A policeman and a 12-year--old boy are
          reported to have been killed during a demonstration on
          16 March 1991 and others are reported to ha e been
          injured. Members of the armed forces who dispersed the
          demonstrations are reported to have used unnecessary
          force against the demonstrators who were initially
          making calls for multi—party democracy without using
          violence. Rioting later broke out in various parts of Lomé.
          Two young men were killed by soldiers on 5 April when
          they tried to topple a statue of president Gnassingbe
          Eyadema, situated next to the headquarters of the
          Rassemblement du Peuple Togolais (RPF), the ruling party
          in Togo.
          The case below highlights another common outcome of
          demonstrations, be they violent or not, but especially when
          they turn violent: people are arrested who were not
          personally involved in the violence.
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          Example: During February, there were two
          demonstrations against the government in Abidjan, Côte
          d'Ivoire, The demonstrations started peacefully, but later
          on, there were violent attacks by some marchers. In total,
          26 people have been convicted under the procedure of
          flagrant délit, a procedure for those caught in the act.
          They were tried under the terms of Article 26 of the Penal
          Code which establishes the criminal responsibility of
          someone associated with a crime, even if they have not
          themselves carried out the criminal act. Yet, those
          convicted were not personally involved in using or calling
          for violence.
          5. What shou d happen after an afleged case of excessive use
          of force?
          According to international standards governments should
          demonstrate that they will not tolerate the arbitrary or
          abusive use of force and firearms by law enforcement
          officers by making such abuse punishable as a criminal
          offence and by ensuring that law enforcement officers
          responsible for such abuses are charged and tried.
          States are obliged to
          • carry out impartial and exhaustive investigations into
          all allegations of killings resulting from the use of
          firearms
          • clarify the circumstances of the incident
          • identify those responsible
          • bring them to justice
          • compensate the victims or their families
          • make the results of the investigation public.
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          ExcessHve Use of Force
          U. How to monftor excessive use of force
          Monitoring is the long4erm observation and analysis
          of the human rights situation in a country or region.
          It consists of collecting systematically and consist-
          ently information that may be related to human rights
          violations, from a variety of sources.
          This information, collected over a certain period of time,
          should allow you to put the cases under investigation
          into a political and legal context, as well as to
          identil ' patterns in terms of excessive use of force. They
          should also allow you to develop an in-depth knowledge
          of the security forces and opposition groups, their
          methods of operations, their chains of command, etc.
          • Please refer to the handbook, Monitoring and
          Documenting Human Rights Violations in Africa,
          Three main steps for mon tor ng excess ve use of
          force
          • Step 1: Collect information on the law, political climate
          organisation of the security forces and armed groups
          • Step 2: Record and follow-up individual allegations of
          excessive use of force.
          • Step 3: Analyse information and allegations and identify
          patterns
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          1. Collect ega nformat on
          The investigation of alleged cases of excessive use of force
          depends heavily on your knowledge and understanding of
          the legal texts or regulations defining the duties of the
          security forces and the limits imposed on their activities.
          It is therefore very important that you make yourself
          familiar with all the texts related to the issue of the use of
          force and the use of firearms. In particular, you need to
          find the answers to the following questions:
          • What is the definition of the use of force under national
          laws?
          • What are the limits imposed on the use of force and
          on the use of firearms?
          • Are there laws or regulations that facilitate the
          carrying out of excessive use of force with impunity,
          such as shoot- on--sight orders, curtailed post- mortem
          or inquest procedures, provisions for immunity from
          prosecution, or the use of presidential pardon?
          • Are there any laws prohibiting the use of certain
          weapons by security forces?
          • Are there any prescriptions or time limits for filing
          complaints against security forces?
          2. Collect nformat on on security forces
          In addition to being knowledgeable about the domestic law
          and regulations, you should also seek to develop some
          understanding of the way security agencies operate and
          are organised. These include: the police force, special
          branches, military forces, internal security agencies, etc.
          Some of the information to be researched may include:
          a, Organisation of the security forces
          • Identify the different branches within the security
          forces and their respective chains of command;
          • Are there any particular security forces that are
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          ExcessHve Use of Force
          usually involved in repressive activities and controlling
          demonstrations?
          • Find out whether the law provides for paramilitary
          militias, police reserves, ci ilian forces;
          • Find out whether supposedly independent
          organisations who support the government are
          organised on a paramilitary basis, and whether they
          receive military training, transport or equipment.
          b. Internal regulations
          These are the codes of conduct or guidelines that govern
          the activities of the security forces in general, and the use
          of force in particular. They may be confidential documents
          and include:
          • Codes of conduct governing the use of force and of
          lethal force by all security forces
          • Lethal force regulations
          • Regulations or internal guidelines regarding crowd
          control, arrest of criminals, etc.
          You ought to find out how they regulate, limit or prohibit
          the use of force and of firearms.
          c, Training
          Knowledge about the training received by the various
          branches within the security forces will also be ery
          important in assessing specific cases and especially in
          identifying recommendations. Some of the questions you
          may want to investigate include:
          • What type of training is received by the security forces?
          • How often?
          • Who, within the security forces, is more likely to be
          trained (e g. junior or senior officer)
          • Who trains them?
          d. Weapons
          You also want to find out about the types of weapons that
          law enforcement officials are allowed to carry and use:
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          Identify the various type of weapons carried by specific
          security branch or organisations
          3. Record and foflow up ndMdua cases
          In many circumstances, you will be able to reach some sort
          of conclusion regarding a particular case on the basis of
          what yoti know about previous cases of alleged excessive
          tise of force. It is therefore very important that you follow
          tip on all cases that come to your attention.
          To facilitate monitoring, it is recommended that you
          develop a form to record individual cases of excessive use
          of force that are brought to your attention, either through
          the media, family members, witnesses, etc.
          This form is meant to give you a quick look at a case and
          to identify possible common points among a number of
          cases. In all cases, you will need to refer to the broader
          file to get all the details regarding the case.
          On the next page is an example of such a form. You need
          to adapt it to the specific circumstances of your country or
          region
          4. dentffy patterns
          Patterns constitute one or several typical features of human
          rights violations, in this case, excessive use of force.
          You identify patterns on excessive use of force by
          (i) reviewing and analysing a number of cases over a given
          period of time; and
          (ii) identifying the common elements among all cases, such
          as. location; date and time; cause of injuries,
          circumstances; etc.
          Through monitoring the press and investigating individual
          cases, you should be able to identify patterns. These will allow
          you to draw an overall picture of the situation as far as
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          ExcessHve Use of Force
          Samp e form for recorthng nformafion on excess ve use of
          force
          Date ............. Reg strafion number ...................... nformabon comp Ded by
          Visit to the scene: No Yes by on
          nterv ews of witnesses: No Yes by on
          1 V ct m dent ficat on nformat on
          Name (Last and first name, n ckname)
          Date of Barth or Age Gender
          Profess on/Occupafion Fam Dy Status
          Address
          Nafionatty Retg on Ethn c ty
          Phys ca descnpfion or p cture
          2. Locat on
          Date and bme of the nc dent
          Exact ocafion
          Provnce D strct Cty/vDDage (or nearest)
          Street address
          3. Nature of the nc dent
          Nature of the ncdent ( e. arrest, demonstratons, etc.)
          Date, pace, tme:
          Descnpt on
          Steps taken by demonstraton organsers to avod probDems
          4. Nature of the njur es
          How was the vctm njured?
          Df a buDDet wound, what type of buDDets ' 7
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          5. Afleged perpetrators
          Names'
          Officers in charge
          Cha n of command'
          6. Evidence
          Wtnesses'
          Forens c ev dence
          Court record'
          Other (videotapes, photographs, etc.)'
          7. Comp a nts
          Was a complaint lodged? No Yes
          If yes, when'? where'?
          by whom'?
          8. Government responses
          Was an invesbgation conducted'? No Yes
          If yes, by whom?...................... when?,,..........................
          DDd the case reach court? No Yes
          If yes, wh ch court'? when'?
          Were any statements made by pubhc offic aIs; f so, what'?
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          ExcessHve Use of Force
          excessive use of force is concerned and will assist you in future
          investigations.
          Patterns in the identity of the victims
          The victims themselves may present a number of common
          characteristics. There may be individuals or groups of mdi
          viduals specifically targeted for arrest or violence. These
          individuals may present the following common
          characteristics:
          • type of political activities
          • professional activities or occupations
          • ethnicity
          • religion
          • age group
          • gender
          • sexual orientation
          • residents of clearly defined areas
          • street children, prostitutes, beggars
          Patterns in the location of the incidents
          Alleged incidents of excessive use of force may take place
          overwhelmingly in certain specific locations. This may
          indicate that, while in parts of the country or at other police
          stations, law enforcement officials follow the principles
          regarding the exceptional nature of the use of force, in
          other places they don t. Incidents of excessi e use of force
          may be overwhelmingly located in:
          • regions
          • cities or localities
          • neighbourhoods
          • police stations
          • secret detention centres
          • intelligence units
          • military barracks
          Patterns in the identity of alleged perpetrators
          Through monitoring, you may also he able to identify a
          pattern in terms of the identity of the alleged perpetrators.
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          For instance, all cases of excessive use of force may be
          committed by one police force or, indeed, by certain
          individuals or by police forces under one particular chain
          of command, So you need to look for patterns in
          • specific security forces;
          • specific individuals;
          • ranks
          Patterns in the methods used
          Quite often, the methods used by the law enforcement
          officials are consistent, i ,e. the same or similar methods
          may be used. Such methods may include:
          • use of firearms: police shooting to kill
          • use of a specific forms of restraining techniques,
          beatings, etc.
          • violence commonly used to arrest or control
          • violence commonly used after individuals have been
          overpowered
          • use of agents pro vocateurs
          Patterns in the circumstances
          The circumstances immediately preceding or following the
          incidents may also be quite similar and as such present a
          pattern. For instance, such incidents may take place particu
          larly during or after:
          • new legislation
          • declaration of a state of emergency
          • elections
          • announcements of meetings or requests for authorisation
          • meetings
          • demonstrations, riots
          intimidation and/or death threats
          Patterns in the causes of injuries and/or deaths
          The causes of the injuries and/or death resulting from alleged
          excessive use of force may often be similar, indicating a
          pattern:
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          ExcessHve Use of Force
          • deaths or injuries resulting from gunshots
          • deaths or injuries resulting from certain restraining
          techniques
          • deaths or injuries resulting from beatings
          Patterns in government responses to alleged cases
          A pattern may also emerge over time in terms of the responses
          of the government to the accusations. Such a pattern may be
          characterised by:
          • public statements following the incidents
          • overall attitude to the accusations (arrogance, denial,
          defensive reactions, etc.)
          • the absence of or nature of the investigations
          • intimidation of witnesses
          • the nature of the procedures
          • the absence of or nature of prosecutions (including a time
          limit for prosecution)
          • the types of courts responsible for the proceedings
          • the absence of or nature of the verdict
          • out of- court compensation
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          DL How to conduct fact find ng
          Fact-finding consists of investigating a specific in-
          cident or allegation of human rights violations,
          collecting or finding a set of facts that proves or
          disproves that the incident occurred and how it
          occurred, and verifying allegations or rumours.
          For this purpose, you need to:
          • Step 1: Gather material evidence that will confirm
          (or not) the allegations
          Material evidence may include medical records, photo
          graphs, physical signs or marks, official documents or
          acknowledgements.
          Step 2: Conduct interviews
          Individuals to be interviewed may include the victim,
          family members, eye witnesses or other witnesses,
          security officials, local officials, etc.
          • Step 3: Assess the information and evidence
          Having gathered material evidence and interviewed
          the victims or witnesses, you will need to assess the
          information and evidence provided in order to
          determine whether excessive use of force took place.
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          1. Preparing for the nvest gat on: Get the facts
          Be knowledgeable
          • Be knowledgeable about the law related to the use of
          force and the use of firearms by law enforcement
          officials in your country: find out exactly what is
          prohibited.
          • Be knowledgeable about the patterns related to
          incidents of excessive use of force.
          • List everything you already know about the case
          • Ask yourselves the following question: What
          information is missing? What kind of evidence is
          lacking?
          Seek expert advice
          • Get all necessary information or expert advice, e g.
          consult with forensic pathologists, lawyers, etc.
          2. Go ng to the scene and other ocat ons
          Identify the places you may need to go to in order
          to conduct your investigation, such as
          • the scene of the incident, such as: the street, the house,
          the police station, etc.
          • the hospital, if the victims, possibly including law
          enforcement officials, had been taken there;
          • the mortuary;
          • the police station(s) or security forces' locations;
          • the courts, if complaints have been filed and if there
          is an investigation into the incident;
          Carry out a thorough risk-assessment
          If you decide to go to the scene of an incident involving
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          excessive use of force, or to any other places where you
          may find information about the incident (prisons,
          neighbourhoods, etc ), you must assess all the risks
          involved for you, your colleagues, and the people you will
          talk to.
          List all possible security concerns (e g. your own
          physical security and security of your contacts) and
          develop contingency plans to deal with each one of
          them (e g. evacuation: how?). If access to, and your
          presence at, the scene (or other locations) carries many
          dangers, identify alternati e means of carrying out the
          research, e g. rely on a confidential local contact to
          bring possible witnesses outside the area.
          • Be ready: prepare responses regarding the reasons for
          your visit and what you are doing in case people ask
          you difficult questions or appear suspicious.
          • If necessary, seek official written authorisation to go
          to these places.
          Decide upon the composition of the delegation
          • Be strategic: The investigative team should not be
          constituted of individuals who may be perceived as
          partial because of their ethnicity, religion, known
          political affiliation, etc. As far as it is possible, identify
          team members who will also be perceived as impartial
          by the informants.
          • Experts: Identify which expertise will be most needed
          during the investigation: You may need forensic
          pathologists, a ballistic expert, a lawyer, etc. If
          possible, you should include such an expert in your
          delegation. If it is not possible, you should meet with
          experts before going on a fact4inding mission.
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          ExcessHve Use of Force
          3. Preparing before mon tor ng a pubflc demonstration or
          assemb y
          In addition to the above, if you decide to monitor a public
          demonstration or assembly, you will need to consider the
          following.
          Find out whether it is an authorised or
          unauthorised assembly
          • Contact the organisers of the demonstration; find out
          what steps they have taken to get authorisation;
          whether the authorisation was granted, and, if not,
          what reasons were given to them for the rejection of
          their application.
          Determine how will it proceed
          • Find out the following: Which route is the
          demonstration planning to take? How many people are
          expected? How long is it supposed to last? Are specific
          activities planned during the demonstration or the
          assembly? Will there be any speakers? Are any
          security measures being taken by the organisers? Are
          the organisers prepared for police intervention? What
          instructions were gi en to participants by the
          organisers?
          Carry out your own thorough risk assessment
          • Demonstrations and assemblies may turn violent. Be
          ready for all eventualities.
          • List all possible security concerns (e.g. your own
          physical security and the security of your contacts) and
          develop contingency plans to deal with each one of
          them (e.g. evacuation: how?).
          • If time allows, familiarise yourself with the location
          of the assembly or the route of the demonstration;
          identify possible escape routes; identify places (e.g.
          balcony or windows of a nearby building) from which
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          you can observe the demonstration or the assembly in
          relative security.
          • Conduct the monitoring with at least one colleague: one
          of you can check on the other, e.g. ensuring you are not
          hit by a bottle while taking pictures
          Get your equipment ready
          • If you have a camera, video, tape recorder, make sure that
          they are all working. They all could be very useful later
          on to help assess what happened during the assembly or
          the demonstration.
          • Carry more than one piece of equipment if possible.
          4. dentffy the mahi sources of hiformat on and evidence
          Identify sources of information and prepare your
          interview format:
          • List all the possible contacts and sources of information
          that you may need to interview and meet in order to
          investigate and corroborate the information
          Poss b e sources of nformat on
          • The victims • Witnesses
          • Journalists, including cameramen if they were
          filming a demonstration
          • Organisers of the demonstration or assembly
          present at the scene
          • Other organisers who may not have been
          present but may have had to deal with the
          police
          • Law enforcement officials present during the
          incident and their superiors
          • hospital workers e mortuary workers
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          • Identify who it may be more appropriate to meet first,
          provided, of course, that you have the luxury to set up and
          organise meetings. In any case, you should decide
          whether and at which point in the investigation you will
          meet with security officials.
          Prepare your list of evidence
          • Write down a check-list of the data and facts necessary
          to assess the allegations
          The biggest challenge is to determine whether the use of
          force v as, indeed, excessive. In many cases, the law
          enforcement officials will argue that they had no other
          option and that their lives or other lives were threatened
          It is often not possible to establish with certainty shether
          the use of force was excessive.
          • Your knowledge of the methods of operation of law
          enforcement officials and of patterns as far as the use
          of force is concerned is crucial in terms of directing your
          investigation.
          • As far as government responsibilities are concerned, if
          no regulations are in place to govern the use of force by
          law enforcement officials, if law or regulations allow for
          an unlimited use of force, or if no full and impartial
          Poss b e mater a ev dence
          • Official statements 9 Report of the official investigation
          • Medical, hospital and/or post-mortem records
          • Court records 9 Videos or pictures of the incident
          • Documents left behind by the victim(s)
          • Arms left behind, bullet shells • Police reports
          • Bullets, types of guns, or any other weapons used by the police
          • Bullets, type of guns, or any other weapons used by other
          individuals and/or the victims themselves
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          investigations have been conducted, and if impunity
          is allowed to prevail, any of these can be taken as a
          strong indicator that the government condones the
          excessive use of force by law enforcement officials.
          • See below for possible material evidence and for some
          of the questions that may guide your investigation and
          assist in demonstrating excessive use of force.
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          V. How to assess nformat on
          Please refer to Annexe One for a sample of questions
          guiding the investigation and your assessment
          The following steps are meant to assist you in assessing
          the information and reaching conclusions regarding
          allegations of excessive use of force.
          1 Reliability of initial sources
          • Are your initial sources or contacts reliable 7
          In your experience, have these sources been reliable and
          accurate before 7
          2 Consistency with patterns
          • Is the incident reported to you consistent with what
          you know about the patterns of incidents of excessive
          use of force in the country?
          In many countries, the incidents of excessive use of
          force will present strong similarities from which
          patterns can be extracted.
          • Compare the case under investigation with what you
          know about patterns in excessive use of force
          3 Consistency of medical evidence
          • Whenever possible, you should get the assistance of
          medical experts to assess whether medical evidence is
          consistent with the allegation
          4 Reliability of the testimonies
          • Do the witnesses' testimonies appear reliable and
          consistent with each other?
          • In assessing the testimony, keep in mind the points
          developed in the handbook Monitoring and
          Documenting Human Rights Violations in Africa.
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          Pay special attention to:
          * The survivor's description of the symptoms following
          the alleged torture: what type of physical pains and
          mental reactions has the victim experienced following the
          alleged excessive use of force?
          * The survivor's description of current symptoms and
          illnesses: what are her/his current health complaints
          both physical and mental? What was his/her health before
          being submitted to excessive use of force?
          * The survivor's account of the circumstances, location,
          procedures, individuals involved, etc. Are they con
          sistent with what others sho sitnessed similar events at
          the same time and place say; or with the patterns in the
          excessive use of force?
          * The survivor's account of the sequence and timing of
          the events
          * Consistency of the testimony: Does the testimony
          concur with others as well as with any previous pattern
          of excessive use of force in the country/region? Does the
          survivor contradict himself/herself when asked the same
          or similar questions?
          * Inconsistencies of the testimonies: Are they the result
          of the survivor's dishonesty or of faults in memory, ex
          aggerations, unsubstantiated rumours, cultural differ
          ences and misunderstandings between the interviewer (or
          interpreter)s and the interviewee?
          5 Assessing the responsibility of the government
          • Did the government's response meet international and
          national standards as far as excessive use of force is
          concerned?
          Official responses include: official acknowledgements
          or unofficial statements by representatives of the gover—
          nment; court testimony; conclusions of independent
          investigation bodies or lack of independent investigations;
          post mortem report
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          Annexe One: Key quest ons gu d ng the nvesflgat on
          and assessment
          1. The context: does it indicate strong government
          disapproval, interference or threat?
          1.1 Demonstrations: What was the political context and what
          were the circumstances before the demonstration(s)? Were
          any statements issued by government officials regarding
          particular political parties or individuals or
          demonstrations? Was the authorisation granted and, if not,
          on what grounds? Did government officials issue any
          warnings beforehand 7
          L2 Arrests: What was the political context and what were
          the circumstances before the arrests(s)? Were any state-
          ments issued by government officials regarding particular
          types of crimes or criminals political parties or
          individuals?
          2. Nature of the offence resulting in the incident: was
          it very serious?
          The main issues here relate to the nature of the offence tinder
          domestic law: you need to assess how serious such an offence
          was to warrant the use of force by the law enforcement
          officials, While answers to this question may be found in legal
          texts, you should remember that the behaviour of the
          offenders may dramatically alter the nature of the offence
          itself.
          3, Behaviour of the offender(s)
          The main questions here are the following: (1) whether the
          behaviour of the crowd or of the suspects constituted such a
          threat that the only reaction possible for the law enforcement
          officials was to use force, including lethal force; (ii) whether
          the police force could have relied on other non4ethal means
          to control the crowd and/or arrest; (iii) if a killing did occur,
          whether it was an accident?
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          3.1 Demonstrators: Was violence used by the demonstrators
          or agents provocateurs? Were armed, intoxicated, or
          aggressive individuals present? Were gunshots fired from
          within the crowd?
          3.2 Other offenders: Were the alleged offenders armed? Did
          they use force and firearms 7 What was the nature of the
          alleged crime? Did they shoot at the police?
          4. Number and nature of law enforcement agencies on
          the scene: does it appear excessive or disproportionate
          in comparison to the situation?
          4.1 Demonstrations: How many police were at the location?
          Which branches? Who had overall responsibility for the
          demonstration? What type of weapons and other
          instruments were at the disposal of the police ' Did they
          use agents pro vocateurs?
          4,2 Arrests: Was the encounter between the police and the
          alleged criminals “accidental'? Were the police at the site
          following a tip—off? Were the arrests planned? How many
          police were involved? Which branch 2
          5. Nature of the law enforcement officials' operations:
          do they indicate heavy handed (disproportionate)
          reactions to the situation?
          5.1 Use of force, excluding firearms:
          What tactics were used by law enforcement officials?
          Were peaceful means used before resorting to force? Were
          demonstrators dispersed? How? Did the police pursue
          fleeing individuals? For how long? Was there a fight
          between the victim and the police force? Were the police
          seeking to arrest individuals? What type of restraining
          techniques (if any) were used?
          5.2 Use of firearms
          What kind of weapons were used? How were they used?
          Were there warning shots? Were other methods used
          before the reliance on firearms? Did the purpose behind
          the use of firearms fit the circumstances allowing for the
          use of firearms 2
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          Remember: Firearms are to be used only in exceptional
          circumstances:
          (1) firearms should be used after less extreme measures
          have been used and proved insufficient
          (ii) the use of firearms should not be lethal;
          (iii) they should only be used in self defence or the defence
          of others, to prevent particularly serious crimes, to arrest
          a person who poses a grave threat to life.
          6. Victims and witnesses: did the extent and nature
          of the casualties indicate a disproportionate
          response on the part of the law enforcement
          officials?
          6.1 The victim(s): How many victims were there? Did the
          victims have characteristics in common with previous
          victims or groups who have been targeted in the past
          (e.g. young people, ethnic or religious groups, members
          of political organisations, etc.) Were the victims well
          known opponents or leaders? Was the victim armed?
          6.2 Law enforcement officials: Were members of the
          police force injured or killed? How many? What was
          the nature of the injuries? Where did they occur? (e.g.
          near where alleged killing occurred?)
          6,3 Witnesses: Were there any witnesses to the alleged
          excessive use of force: Were a large number of
          individuals arrested following the incident? Were there
          cases of alleged ill treatment? Were any charges
          brought? Did the police harass witnesses to the killings
          or relatives of the victims? Did the police charge
          witnesses?
          7. Casualties: nature of the injuries or causes of death
          7.1 What was the nature of the injuries or the causes of
          death? Did the nature of the injuries indicate that force
          (e g. beating) was used for a long period of time, that
          several officials were involved in using force? If firearms
          were used, what was the nature of the wounds? Did they
          indicate shooting at close range?
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          7.2 Was an autopsy performed? Did the autopsy follow
          national and international protocols 7 What were the
          results of the autopsy? What conclusions were drawn?
          Whenever possible, you should refer all available medical
          evidence (medical certificate, photographs, testimonies) to
          medical experts
          8. Response of the authorities: does it indicate
          impunity?
          Remember: Governments should demonstrate that they will
          not tolerate the arbitrary or abusive use of force and firearms
          by law enforcement officers by making such abuse punishable
          as a criminal offence, and by ensuring that law enforcement
          officers responsible for such abuses are charged and tried.
          Following a killing by a law enforcement officer there should
          be a prompt investigation to determine the cause, manner and
          time of death, to establish responsibility for the death; and to
          uncover any pattern or practice which may have led to the
          death. The report should be made public. Victims relatives
          should receive compensation.
          • Did public officials in any way Justify' the killing
          immediately after the event?
          • Are there any laws or regulations allowing for the
          excessive use of force by law enforcement officials?
          • Was an inquiry initiated and by whom? Did the inquiry
          follow principles set down by domestic law and inter
          national standards? Was a criminal procedure initiated?
          Was a civil suit initiated? Was internal investigation
          initiated?
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          Annexe Two: The pr nc p e of proporfionafity
          Some national states and NGOs have sought to define
          “excessive use of force' through the concept of
          proportionality. Under this principle:
          The use of force is allowed only when it is proportional to:
          (i) legitimate objectives,
          (ii) the seriousness of the offence, and
          (iii) the extent required for the performance of the
          officers' duty,
          Both the principles of “proportionality” and the one of
          ‘reasonably necessary” leave a large margin of discretion
          to the law enforcement officials. But you may find the rule
          of proportionality a bit easier to apply in practice. Let's first
          look at all three elements to which the rule of
          proportionality should be applied:
          (i) legitimate objectives: these are those objectives that
          are lawful: conducting an arrest may be lawful if the
          required procedure has been followed, such as, in many
          cases, obtaining an arrest warrant. Ensuring the respect
          for law and order may be another lawful objecti e,
          although, here, the assessment of what is or is not
          legitimate may depend a great deal on the individuals
          involved, rather than on strict rules.
          (ii) the seriousness of the offence: people may not
          always agree as to whether an offense is very serious,
          serious, or not serious at all.
          In many cases, there are domestic laws or
          international human rights principles which can assist
          in assessing the seriousness of an offence, and in
          bringing some consensus among all parties in ol ed.
          In other cases, however, domestic regulations them
          selves may be unfair or discriminatory in their
          characterisation of offences (e.g. laws against freedom
          of expression or assembly, blasphemy laws, laws
          against homosexuals, laws discriminating against
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          women) or may be seen as unfair by many people (e g.
          adultery). The individuals investigating alleged cases
          of excessive use of force may not be in a position to
          cons ince a national court that excessi e force was used
          because of their assessment of the seriousness of the
          offence.
          (iii) the extent required for the performance of the
          officers' duty: this is the most difficult element to
          investigate.
          One has to first establish what the duties of the officers
          were in the particular case under investigation: it
          could be controlling a crowd, maintaining peace and
          order, arresting an individual, patrolling, traffic
          control, etc.
          The second question relates to the officers'
          performance of their duties: what exactly is expected
          from them? The definition or list of the acti ities
          involved in the performance of particular functions or
          duties may be found in existing policing guidelines or
          regulations. But the duties may also have been defined
          by the officers superiors, either orally in the course
          of a briefing or in writing.
          The third issue relates to the word “extent”: are there
          any limits imposed on the performance of a specific
          duty?
          Answers to this question may be found in the regula
          tions governing security forces or in the instructions
          that the officers' superiors may have given. For
          instance, many arrests, before they are conducted, will
          require an arrest warrant. If police officers violate this
          principle, that is, if they arrest an individual without
          the warrant required in this case, and use force in the
          course of the arrest, they may have committed two
          human rights violations: unlawful arrest and excessive
          use of force.
          Failure to find an answer in existing regulations, or
          in the superiors' instructions-—that is, if the
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          regulations or the instructions are not imposing any
          limits on the performance of the duties — may indicate
          a failure on the part of the state to protect citizens
          against possible abuse of power by security forces. If,
          despite repeated calls for new regulations, the state
          still does not come forward with any new regulations
          or instructions, what was originally described as a
          state failure to protect may actually constitute state
          complicity.
          If the regulations themselves or the instructions violate
          international standards —that is, if the regulations or the
          instructions openly allow for the use of force or reliance
          on certain weapons that have been characterised as
          dangerous or have been shown to be dangerous it will
          appear that the state “in ites” abuse of power by security
          forces.
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          Annexe Three: Some nternaflona and reg ona
          standards
          1978 UN Code of Conduct for Law Enforcement
          Officials, art. 3:
          Force should be used “only when strictly necessary. The official
          Commentary included in the Code says that the use of force
          should be exceptional, that force should be used only “as is
          reasonably necessary under the circumstances” and that it
          should be used for only two purposes “the prevention of crime”
          and “effecting or assisting in the lawful arrest of offenders or
          suspected offenders,”
          The force used should be proportional to the objectives (it
          should be used only “to the extent required' for the perform
          ance of law enforcement officials' duty.) The Commentary
          acknowledges the ‘principle of proportionality” laid down in
          national la ss and says that the Code should not be taken to
          authorise the use of force which is “disproportionate to the
          legitimate objective to be achieved.'
          1990 UN Basic Principles on the Use of Force and
          Firearms by Law Enforcement Officials:
          The use of firearms is restricted to a series of situations
          involving “the imminent threat of death or serious injury” or
          “grave threats to life', and “only when less extreme means are
          insufficient” to achieve the objectives specified. Furthermore,
          the ‘intentional lethal use of firearms” is to be made only
          “when strictly unavoidable in order to protect life,” The phrase
          “strictly unavoidable” implies that lesser means should be
          used first and that firearms should not be used before lesser
          means have proved insufficient to protect life,'
          2 African Charter on Human and People's Rights
          Tntei ndtlonal
          Di ppeC r flCCS nd Article 4: “Human beings are inviolable. Every human being
          shall be entitled to respect for his life and the integrity of his
          p 101. person. No one may be arbitrarily deprived of this right.”
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          ExcessHve Use of Force
          Article 5: “Every individual shall have the right to liberty and
          to the security of his person No one may be deprived of his
          freedom except for reasons and conditions previously laid
          down by law. In particular, no one may be arbitrarily arrested
          or detained.”
          Article 7 (1): “Every individual shall have the right to have
          his cause heard. This comprises, a) The right to an appeal to
          competent national organs against acts of violating his funda—
          mental rights as recognised and guaranteed by conventions,
          laws, regulations and customs in force; b) the right to be
          presumed innocent until proved guilty by a competent court
          or tribunal; c the right to defence, including the right to be
          defended by counsel of his choice; d) the right to be tried within
          a reasonable time by an impartial court or tribunal.'
          Article 7 (2): “No one may be condemned for an act or
          omission which did not constitute a legally punishable offence
          at the time it was committed. No penalty may be inflicted for
          an offence for which no provision was made at the time it was
          committed. Punishment is personal and can be imposed only
          on the offender.
          Article 8. “Freedom of conscience, the profession and free
          practice of religion shall be guaranteed. No one may, subject
          to law and order, be submitted to measures restricting the
          exercise of these freedoms.'
          Article 10 (1): “Every individual shall have the right to free
          association provided that he abides by the law.
          Article 10 (2): “Subject to the obligation of solidarity provided
          for in Article 29 no one may be compelled to join an
          association.”
          Article 11: “Every individual shall have the right to assemble
          freely with others. The exercise of this right shall be subject
          only to necessary restrictions provided for by law in particular
          those enacted in the interest of national security, the safety,
          health, ethics and rights and freedoms of others.'
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          Annexe Four: Bas c pr nc p es on the use of force
          and firearms by aw enforcement
          offic a s
          Adopted by the Eighth United Nations Congress on the
          Prevention of Crime and the Treatment of Offenders,
          Havana, Cuba, 27 August to 7 September 1990.
          Excerpt:
          “The basic principles set forth below, which have been
          formulated to assist Member States in their task of en—
          suring and promoting the proper role of law
          enforcement officials, should be taken into account and
          respected by Governments within the framework of
          their national legislation and practice, and be brought
          to the attention of law enforcement officials as well as
          other persons, such as judges, prosecutors, lawyers,
          members of the executive branch and the legislature,
          and the public ”
          General provisions
          1. Governments and law enforcement agencies shall adopt
          and implement rules and regulations on the use of force
          and firearms against persons by law enforcement officials.
          In developing such rules and regulations. Governments
          and law enforcement agencies shall keep the ethical issues
          associated with the use of force and firearms constantly
          under review.
          2. Governments and law enforcement agencies should
          develop a range of means as broad as possible and equip
          law enforcement officials with various types of weapons
          and ammunition that would allow for a differentiated use
          of force and firearms. These should include the
          development of non—lethal incapacitating weapons for use
          in appropriate situations, with a view to increasingly
          restraining the application of means capable of causing
          death or injury to persons. For the same purpose, it should
          also be possible for law enforcement officials to he equipped
          with self—defensive equipment such as shields, helmets,
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          bullet-- proof vests and bullet-proof means of transportation,
          in order to decrease the need to use weapons of any kind.
          3. The development and deployment of non—lethal
          incapacitating weapons should be carefully evaluated in
          order to minimise the risk of endangering uninvolved
          persons, and the use of such weapons should be carefully
          controlled.
          4. Law enforcement officials, in carrying out their duty,
          shall, as far as possible, apply non violent means before
          resorting to the use of force and firearms. They may use
          force and firearms only if other means remain ineffective
          or without any promise of achieving the intended result.
          5. Whene er 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
          objecti e to be achieved;
          (b) Minimise 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.
          6. Where injury or death is caused by the use of force and
          firearms by law enforcement officials, they shall report the
          incident promptly to their superiors, in accordance with
          principle 22.
          7. Governments shall ensure that arbitrary or abusive use
          of force and firearms by law enforcement officials is
          punished as a criminal offence under their law.
          8. Exceptional circumstances such as internal political in--
          stability or any other public emergency may not be invoked
          to justify any departure from these basic principles
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          UKWELJ: Mon tonng and DocumenUng Human RHghts VHo at ons n Afnca
          Special provisions
          9. Law enforcement officials shall not use firearms against
          persons except 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 In any event, intentional lethal use of firearms may
          only be made when strictly unavoidable in order to protect life.
          10. In the circumstances provided for under principle 9, law
          enforcement officials shall identify themselves as such and
          give a clear warning of their intent to use firearms, with
          sufficient time for the warning to be observed, unless to do so
          would unduly place the law enforcement officials at risk or
          would create a risk of death or serious harm to other persons,
          or would be clearly inappropriate or pointless in the circum
          stances of the incident.
          11. Rules and regulations on the use of firearms by law
          enforcement officials should include guidelines that:
          (a) Specify the circumstances under which law enforcement
          officials are authorised to carry firearms and prescribe
          the types of firearms and ammunition permitted,
          (b) Ensure that firearms are used only in appropriate
          circumstances and in a manner likely to decrease the
          risk of unnecessary harm;
          (c Prohibit the use of those firearms and ammunition that
          cause unwarranted injury or present an unwarranted
          risk;
          (d) Regulate the control, storage and issuing of firearms,
          including procedures for ensuring that law enforcement
          officials are accountable for the firearms and ammuni
          tion issued to them;
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          ExcessHve Use of Force
          (e) Provide for warnings to be given, if appropriate, when
          firearms are to be discharged;
          (1) Provide for a system of reporting whenever law enforce-
          ment officials use firearms in the performance of their
          duty.
          Policing unlawful assemblies
          12. As everyone is allowed to participate in lawful and peaceful
          assemblies, in accordance with the principles embodied in the
          Universal Declaration of Human Rights and the International
          Covenant on Civil and Political Rights, Governments and law
          enforcement agencies and officials shall recognize that force
          and firearms may be used only in accordance with principles
          13 and 14.
          13 In the dispersal of assemblies that are unlawful but non
          violent, law enforcement officials shall avoid the use of force
          or, where that is not practicable, shall restrict such force to
          the minimum extent necessary.
          14. In the dispersal of violent assemblies, law enforcement
          officials may use firearms only when less dangerous means
          are not practicable and only to the minimum extent necessary.
          Law enforcement officials shall not use firearms in such cases,
          except under the conditions stipulated in principle 9.
          Policing persons in custody or detention
          15. Law enforcement officials, in their relations with persons
          in custody or detention, shall not use force, except when
          strictly necessary for the maintenance of security and order
          within the institution, or when personal safety is threatened.
          16. Law enforcement officials, in their relations with persons
          in custody or detention, shall not use firearms, except in self
          defence or in the defence of others against the immediate
          threat of death or serious injury, or when strictly necessary
          to prevent the escape of a person in custody or detention
          presenting the danger referred to in principle 9.
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          UKWELJ: Mon tonng and DocumenUng Human RHghts VHo at ons n Afnca
          17. The preceding principles are without prejudice to the
          rights, duties and responsibilities of prison officials, as set out
          in the Standard Minimum Rules for the Treatment of
          Prisoners, particularly rules 33, 34 and 54.
          Qualifications, training and counselling
          18. Governments and law enforcement agencies shall ensure
          that all law enforcement officials are selected by proper
          screening procedures, have appropriate moral, psychological
          and physical qualities for the effective exercise of their
          functions and receive continuous and thorough professional
          training. Their continued fitness to perform these functions
          should be subject to periodic review
          19. Governments and law enforcement agencies shall ensure
          that all law enforcement officials are provided with training
          and are tested in accordance with appropriate proficiency
          standards in the use of force. Those law enforcement officials
          who are required to carry firearms should be authorized to
          do so only upon completion of special training in their use.
          20. In the training of law enforcement officials, Governments
          and law enforcement agencies shall give special attention to
          issues of police ethics and human rights, especially in the
          investigative process, to alternatives to the use of force and
          firearms, including the peaceful settlement of conflicts, the
          understanding of crowd behaviour, and the methods of per-
          suasion, negotiation and mediation, as well as to technical
          means, with a view to limiting the use of force and firearms.
          Law enforcement agencies should review their training pro
          grammes and operational procedures in the light of particular
          incidents.
          21. Governments and law enforcement agencies shall make
          stress counselling available to law enforcement officials who
          are involved in situations where force and firearms are used.
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          ExcessHve Use of Force
          Reporting and review procedures
          22, Governments and law enforcement agencies shall estab
          lish effective reporting and review procedures for all incidents
          referred to in principles 6 and 11(1). For incidents reported
          pursuant to these principles, Governments and law enforce
          ment agencies shall ensure that an effective review process
          is available and that independent administrative or prosecm
          tonal authorities are in a position to exercise jurisdiction in
          appropriate circumstances. In cases of death and serious
          injury or other grave consequences, a detailed report shall be
          sent promptly to the competent authorities responsible for
          administrative review and judicial control.
          23. Persons affected by the use of force and firearms or their
          legal representatives shall have access to an independent
          process, including ajudicial process. In the event of the death
          of such persons, this provision shall apply to their dependants
          accordingly.
          24. Governments and law enforcement agencies shall ensure
          that superior officers are held responsible if they know, or
          should have known, that law enforcement officials under their
          command are resorting, or have resorted, to the unlawful use
          of force and firearms, and they did not take all measures in
          their power to prevent, suppress or report such use.
          25. Governments and law enforcement agencies shall ensure
          that no criminal or disciplinary sanction is imposed on law
          enforcement officials who, in compliance with the Code of
          Conduct for Law Enforcement Officials and these basic
          principles, refuse to carry out an order to use force and
          firearms, or who report such use by other officials.
          26, Obedience to superior orders shall be no defence if law
          enforcement officials knew that an order to use force and
          firearms resulting in the death or serious injury of a person
          was manifestly unlawful and had a reasonable opportunity to
          refuse to follow it. In any case, responsibility also rests on the
          superiors who gave the unlawful orders.
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          UKWELJ: Mon tonng and DocumenUng Human RHghts VHo at ons n Afnca
          Annexe F ve: Poss b e recommendat ons and acflon
          • Review domestic legislation relating to the police to
          check whether it incorporates explicit reference to
          international human rights standards. Lobby for such
          an incorporation.
          • Lobby against police carrying specific weapons,
          particularly lethal (e g. AK47 rifles), or using certain
          bullets.
          • Lobby for proper training of all members of the
          security forces. Send your reports and
          recommendations to police training schools and foreign
          governments involved in the training of security forces.
          • Lobby for the implementation of an independent and
          impartial body responsible for dealing with complaints
          against the police.
          • Organise workshops for senior and junior law
          enforcement officials regarding the use of force.
          • Institute constructive dialogue with senior police
          officers; officers responsible for various prisons orjails;
          etc.
          • Monitor demonstrations and public meetings and their
          policing.
          • Ask the police commissioner to come with you to verify
          information; ask for him or his officers to check the
          information put forward by the human rights officer.
          • Suggest to the organisers of demonstrations that they
          invite judicial officials (or notaries) to go along to a
          demonstration to witness what happens and how the
          demonstration was organised.
          • Present the report of your investigation to the govern
          ment.
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          ExcessHve Use of Force
          • Raise the issue of excessive use of force and be
          persistent: one letter is not enough.
          • Assist the ictims in filing complaints against police
          officers on well—documented cases. (Beware that there
          may be time limits to do so, in accordance with the
          law).
          • Hold meetings with the authorities at the Ministry of
          Interior, for instance, to raise the issue and sensitise
          the authorities.
          • Use all possible tools to alert national public and inter --
          national community about the gross patterns of
          excessive use of force in the country; such as: launching
          a massive wa e of appeals, public campaigns,
          collaboration with other NGOs, open letter to the
          President or Prime Minister, etc.
          • Organise marches against police brutality.
          Page 49
        
          
          The Pubhshers
          Amnesty International (Al) is a worldwide voluntary activist movement
          working towards the observance of all human rights as enshrined in the
          Universal Declaration of Human Rights and other international standards. It
          promotes respect for human rights, which it considers interdependent and
          indivisible, through campaigning and public awareness activities, as well as
          through human rights education and pushing for ratification and
          implementation of human rights treaties. Amnesty International takes action
          against violations by governments of people's civil and political rights It is
          independent of any government, political persuasion or religious creed. It does
          not support or oppose any government or political system, nor does it support
          or oppose the views of the victims whose rights it seeks to protect. It is concerned
          solely with the impartial protection of human rights
          Amnesty International Dutch Section Special Programme on Africa
          (SPA) was established in 1994. Initially, SPA developed a programme to assist
          Amnesty Sections worldwide to improve the effectiveness of their campaigning
          against human rights violations in Africa. Since 1996 SPA has moved towards
          providing support to the broader Human Rights Movement in Africa. Rather
          than funding projects, SPA is developing and co ordinating long term projects
          for and and in cooperation with other human rights organisations and AT
          sections. In addition to copublishing Ukweli, SPA is also coordinating advocacy
          and training workshops in southern and West Africa, a project on policing and
          Human Rights, and a pilot project to raise human rights awareness in rural
          areas in Liberia.
          CODESRIA is the Council for the Development of Social Science Research in
          Africa head quartered in Dakar, Senegal. It is an independent organisation
          whose principal objectives are facilitating research, promoting research based
          publishing and creating multiple forums geared towards the exchange of views
          and information among African researchers. It challenges the fragmentation
          of research through the creation of thematic research networks that cut across
          linguistic and regional boundaries
          CODESRIA publishes a quarterly journal, Africa Development, the longest
          standing Africa- based social science journal; Afrika Zamani, ajournal of history;
          the African Sociological Review, and the African Journal of International Affairs
          ( AJIA ) Research results and other activities of the institution are disseminated
          through ‘Working Papers', ‘Monograph Series, ‘New Path Series', ‘State -of--the-
          Literature Series', ‘CODESRIA Book Series', the CODESRIA Bulletin, KIBARU
          and CIVIC AGENDA.
        

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