COVID-19, Consent and Coercion: New United Nations Guidance on Less Lethal Weapons in Law Enforcement in the context of the coronavirus

Thirty years have elapsed since the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Basic Principles) were first adopted. Yet, as UN Human Rights Experts express concern about police killings and violence in the context of COVID-19 emergency measures, and law enforcement officials  around the world are reported to have used excessive force on many occasions under the pretence of responding to the coronavirus outbreak, issues around the use of force are more relevant than ever.  In the present context, the new United Nations Human Rights Guidance on Less Lethal Weapons in Law Enforcement (Guidance)—which aim to complement the Basic Principles—is, perhaps, even more timely and worthy of sustained attention. 

There is not space, here, to provide a comprehensive review of the Guidance which, amongst other topics, covers general principles and considerations around the use of force and less lethal weapons; unlawful weapons; the use of force in specific circumstances; the use of particular types of weapons; and dissemination, review and implementation. Instead, this blog focuses on three key provisions of the Guidance which are relevant to the COVID-19 pandemic.

First, sections 4.1 and 4.2 of the Guidance detailing the design, production, legal review, testing and procurement are crucial. Drawing on the work of current and previous UN Special Rapporteurs on Torture, the Guidance provides that independent testing and a legal review of any potential new weapons should be conducted, with the review not just focusing on the medical implications of the weapon alone, but also including other sources of expertise.  The focus of this review should be not just on how the weapons are ‘intended’ to be used, but also on expected and foreseeable use; an important distinction. States and manufacturers should publish information about the design features and parameters of weapons that may be adopted, as well as medical studies conducted, their authors and those who have received compensation for promoting their products. They should also publish policies on, and criteria for, the weapons’ use. 

While these provisions may sound like common sense, they are all too often missing in the rush to adopt new technologies.  They are particularly important during the current crisis as police forces may turn to new (and perhaps untested or insufficiently tested) technologies under the guise of responding to the coronavirus outbreak. For example, spit hoods have been introduced in a number of forces, despite a study by Kennedy et al which found ‘no readily available published data’ on the medical effects of the devices, and considerable variation, even within one jurisdiction, as to the models and types used.  Authorities may also use more ad-hoc measures: the Omega Research Foundation’s coronavirus mapping tool reports cases in India where migrant workers were sprayed with a solution containing sodium hypochlorite, a common bleaching agent.  In this context it is particularly important, as the Guidance recalls, that all equipment used ‘shall be designed and produced to meet legitimate law enforcement objectives’, as opposed to being improvised in nature.

Second, section 5 of the Guidance details unlawful weapons and related equipment – i.e. weapons that should never be used in law enforcement – is a particularly helpful addition, with technologies such as body worn electric-shock devices, weighted restraints and spiked batons included.  In the opinion of the authors, the range of equipment listed could usefully be broadened further to include, for example, direct contact electric-shock weapons (as such stun batons and stun guns), sjamboks and whips and kinetic impact weapons that fire multiple projectiles simultaneously.  Reports, collated and mapped by the Omega Research Foundation, have highlighted police forces in South Africa and Argentina respectively using sjamboks and multiple rubber pellets in the context of COVID-19.   Nevertheless, section 5 of the Guidance provides a useful starting point for States and other actors to remove any unlawful weapons from use, particularly when taken in conjunction with other provisions.

Third, sections 4.3 and 4.4 of the Guidance details monitoring and reporting the use of less lethal weapons and is valuable for both accountability and evidence-based policing alike.  Part 4.3.2. of the Guidance recommends that States should collect and publish ‘data on those on whom force is used (which) should be disaggregated, to the extent possible, for example by age, sex/gender, disability…and ethnic group… This should include publicly available national statistics on deaths and serious injuries related to different categories of less-lethal weapons.’  As experience from England and Wales shows, such initiatives are particularly valuable for, and valued by, police forces themselves who have used such data to make changes to policy and practice. 

As with any document of this nature, the new Guidance is not, nor is it intended to be, exhaustive.  In the authors’ opinion, it should be read in conjunction with detention monitoring standards (for example, standards and statements by the UN Subcommittee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment).  Although policing and detention could appear, at first glance, to be distinct arenas, there is much overlap between them – particularly with regards to the use of less lethal weapons.  The Guidance should also be regularly reviewed.  As Professor Christof Heyns has noted, the Guidance is ‘by no means intended to be the last word’ and should be seen as a starting, rather than an end, point.  A provision for a five year review, already envisaged within the document, is crucial for such an ambitious undertaking as this.

Nor is a document of this nature a panacea.  Ensuring appropriate use of force is a challenge that goes far beyond guidance, or what is (or isn’t) written in any particular text.  Nevertheless, as research by Terrill and Paoline and Bishopp et al have underscored, guidance is an important part of the solution, and has a crucial role to play in ensuring appropriate use of force.  The Guidance document, in particular, helps to fill a long documented gap providing much needed international guidance on this crucial topic and, crucially, attending to the weapons themselves, their technical features and effects.  This is particularly timely as the production and trade of less lethal weapons is increasingly global in scope.  National guidance is no longer sufficient—if it ever were—to tackle the use and misuse of such equipment and the Guidance recognises this, in section 4.7, with provisions on controlling the trade and transfer of law enforcement equipment.

Ultimately the success of the Guidance must be judged—at least in part—by its practical impact.  It has been encouraging to see the Guidance already being consulted by oversight and human rights bodies, States and other actors worldwide, including in Chile , Georgia, Hong Kong, Iraq,  Jamaica  and elsewhere.  As the years go on, we hope it will continue to be a useful and thought provoking addition for States, police agencies and oversight bodies alike and serve to enhance accountability and appropriate use of force worldwide.  While the COVID-19 pandemic may have bought issues around excessive use of force to the fore, it has also underscored that effective and human rights compliant policing must be based on consent, not coercion, and it is to be hoped that this Guidance helps us move more towards the former than the latter.

Editor’s note:  Both authors were members of the Academic Working Group which helped the Office of the High Commissioner for Human Rights develop the Guidance. The Omega Research Foundation’s work on this subject is funded by the European Union’s European Instrument on Democracy and Human Rights (EIDHR) and Dr Dymond’s work was supported by the Economic and Social Research Council [grant number ES/N016564/1].