Shoot-to-kill policies under human rights law

This is an excerpt from a report of the United Nations Special Rapporteur on Extrajudicial, summary or arbitrary executions.

Web links to this page are welcome, but formal citations should be to the official report, E/CN.4/2006/53.

44. In recent years there have been a number of high-profile pronouncements by officials, not infrequently at the most senior level of Government, that they have given orders for the police or the military to “shoot to kill”, to “shoot on sight”, or to use the “utmost force” in response to a particular challenge to law and order. Such statements have often been made in response to perceived terrorist threats but they have also come as a response to widespread looting, to a high incidence of armed robberies, or to an epidemic of drug abuse. All too often, the background context is one in which the official concerned has been subject to severe public criticism for failing to take adequate measures to protect the population. Rather than asking whether preventive measures taken in good time, or the use of accepted policing techniques, appropriately reinforced if necessary, might have been sufficient to deal with the situation, the temptation is to seek to escape blame by proclaiming a crackdown on crime, zero tolerance for any individuals suspected of terrorist ambitions, or a policy of unleashing the full fury of the State to root out drug dealers, etc.

45. But the rhetoric of shoot-to-kill and its equivalents poses a deep and enduring threat to human rights-based law enforcement approaches. Much like invocations of “targeted killing”, shoot-to-kill is used to imply a new approach and to suggest that it is futile to operate inside the law in the face of terrorism. However, human rights law already permits the use of lethal force when doing so is strictly necessary to save human life. The rhetoric of shoot-to-kill serves only to displace clear legal standards with a vaguely defined licence to kill, risking confusion among law enforcement officers, endangering innocent persons, and rationalizing mistakes, while avoiding the genuinely difficult challenges that are posed by the relevant threat.

46. The use of shoot-to-kill tactics also imports, either consciously or otherwise, the language of international humanitarian law into situations which are essentially matters of law enforcement that international law requires be dealt with within the framework of human rights. The notion that the law of armed conflict is an appropriate frame of reference for a Government seeking to deal with law enforcement issues is one that must be soundly rejected. To do otherwise is tantamount to allowing Governments to declare war simultaneously on a given group and on human rights in general.

47. At its crudest, this rhetoric turns on erroneous conceptions about human rights law. There is no conflict between, for example, the human right not to be blown up by terrorists and the human right not to be arbitrarily shot by the police. Under human rights law, States must at once respect and ensure the right to life.33 States have a legal duty to exercise “due diligence” in protecting the lives of individuals from attacks by criminals, including terrorists, armed robbers, looters, and drug dealers.34 This may require the use of lethal force against a suspect, but only when doing so is proportionate and strictly unavoidable to prevent the loss of life.35 No derogation is permitted from the right to life,36 and none is needed.

48. Human rights law unconditionally prohibits the needless killing of suspected criminals, but it fully recognizes that lethal force is sometimes strictly necessary to save the lives of innocent people from lawless violence. A measure of the value human rights law places on the “inherent right to life” is provided by the prohibition of the death penalty for other than the “most serious crimes”.37 For lethal force to be considered to be lawful it must be used in a situation in which it is necessary for self-defence or the defence of another’s life.38 The State’s legal framework must thus “strictly control and limit the circumstances” in which law enforcement officers may resort to lethal force.39 In addition to being pursuant to a legitimate objective, the force employed by law enforcement officers must be strictly unavoidable for its achievement. Non-lethal tactics for capture or prevention must always be attempted if feasible. In most circumstances, law enforcement officers must give suspects the opportunity to surrender,40 and employ a graduated resort to force.41 However, the use of lethal force may prove strictly unavoidable when such tactics would unduly risk death or serious harm to law enforcement officers or other persons. For States to grant law enforcement officers a vaguely defined licence to shoot to kill even when other means of preventing a suspected attack are available makes the daily lives of the innocent not safer, but far more hazardous. States facing terrorist or other threats alleged to require exceptional measures should instead clarify the implications of human rights law for law enforcement officers through training and written guidance.

49. At their most sophisticated, shoot-to-kill policies overlook the role human rights standards play in preventing tragic mistakes. The training documents published by the International Association of Chiefs of Police (IACP) are representative of shoot-to-kill thinking, and at critical points they advance doctrines that undermine the right to life. Human rights law normally requires that officers provide warnings, allow the opportunity for surrender, and employ a graduated use of force before resorting to lethal measures. These requirements serve in part to distinguish dangerous criminals, who can be stopped only with deadly force, from both the deterrable and the innocent. There are, however, exceptions to the requirements of warnings and a graduated response, because there are circumstances in which an immediate recourse to lethal force is strictly necessary to prevent an even greater loss of life. In most such situations, this necessity is the result of a threat’s imminence. This too serves as a safeguard. When a criminal is already in the process or visibly on the verge of using a weapon, there can be little doubt regarding the inevitability of violence if immediate recourse to lethal force is not taken. A suspected suicide bomber, however, poses somewhat different challenges. Warnings and non-lethal tactics are risky not because they might fail to prevent an already imminent act of violence but because they might, in fact, trigger an explosion either by alerting the bomber that this is his final opportunity or by directly setting off the explosive material. With these risks in mind, the IACP guidelines advise law enforcement officers, in some circumstances, to shoot to kill without warnings, without attempts at non-lethal tactics, and without an imminent threat. This strips the use of lethal force of its usual safeguards - without providing any alternative safeguards.

50. It is essential to account for the legal implications of the limited information officers will almost invariably have. The training documents refer constantly to “suspected suicide bombers”, but they neglect to emphasize the high level of certainty required before lethal force is lawful. Unless intelligence is strong enough to permit interdiction before a suicide bombing operation begins, the burden will often fall on individual officers to evaluate whether a given person is a suicide bomber. The IACP’s approach relies extensively on profiles of suicide bombers. Persons with freshly shaved beards, signs of drug use, tightly held backpacks, etc., are suggested as “among the most obvious signs” of possible suicide bombers. However, the scarcity of actual bombers relative to other people exhibiting these characteristics is such as to ensure that false alarms will predominate. No one has claimed that meeting a profile alone is sufficient to permit the use of lethal force, but insofar as law enforcement tactics often preclude warning suspected bombers, it is difficult to see how an officer is to either confirm or disconfirm his or her initial suspicions. Under human rights law, suspicion is not enough to justify a resort to lethal force. There is no legal basis for shooting to kill for any reason other than near certainty that to do otherwise will lead to loss of life.

51. States that employ shoot-to-kill policies for dealing with suicide bombers must develop legal frameworks to properly incorporate intelligence information and analysis into both the operational planning and post-incident accountability phases of State responsibility. If there is a solid factual basis for believing that a suspect is a suicide bomber capable of detonating his explosive if challenged, and if, to the extent possible, that information has been evaluated by persons with appropriate experience and expertise, the immediate use of lethal force may be justified. However, States employing shoot-to-kill procedures must ensure that only such solid information, combined with the adoption of appropriate procedural safeguards, will lead to the use of lethal force.

52. In addition to the legal arguments, it should also be noted that the consequences of mistakenly killing innocent persons on the basis of shoot-to-kill policies are potentially highly counter-productive. They include a loss of public confidence in the police, damage to community relations where a particular community has, in effect, been targeted, and an undermining of the willingness of members of the relevant community to cooperate with the security services in the future.

53. The multiple phases of State responsibility implicated necessitate broad terms of reference for post-incident investigations by States and a broad ambit for inquiries by the Special Rapporteur. The question of State responsibility under human rights law encompasses but goes beyond the question of whether the officer who fired shots thereby incurred criminal responsibility. This is well-illustrated by the case of McCann and Others v. United Kingdom.42 Members of the United Kingdom’s Special Air Service (SAS) shot and killed several members of the Irish Republican Army (IRA). They had been given the - erroneous - information that one of the IRA members possessed a push-button detonator for a car bomb. In light of that information, the European Court of Human Rights did not contest their decisions that it was “absolutely necessary” to kill them when they made motions consistent with reaching for a detonator.

54. However, the Court also held that the authorities controlling the operation had been careless in collecting and analysing intelligence and had, thus, violated the victims’ right to life by communicating with certainty to the soldiers that there was such a car bomb and detonator. In order for the Special Rapporteur to respond effectively to the information he receives, States must cooperate in providing information on the earlier phases of State conduct - such as the legal and regulatory framework governing the use of lethal force, the training provided to law enforcement officers, the planning of operations, and the use of intelligence - as well as on the facts of the incident itself. States employing shoot-to-kill policies must accept the implications of shooting based on intelligence information on the requirement that States’ publicly investigate deaths and prosecute perpetrators where appropriate. Investigations and trials may require the disclosure of some intelligence information. To withhold such information would be to replace public accountability with unverifiable assertions of legality by the Government, inverting the very idea of due process.

RECOMMENDATIONS

58. The use of lethal force by law enforcement officers must be regulated within the framework of human rights law. The rhetoric of shoot-to-kill should never be used. It risks conveying the message that clear legal standards have been replaced with a vaguely defined licence to kill.

59. When States confronting the threat of suicide bombers adopt policies permitting the use of lethal force without prior warnings, a prior graduated use of force, or clear signs of an imminent threat, they must provide alternative safeguards to ensure the right to life. The reliance on intelligence information in such contexts means that States must develop legal frameworks to properly incorporate intelligence information and analysis into both the operational planning and post-incident accountability phases of State responsibility; and ensure that officers are aware that there is no legal basis for shooting to kill for any reason other than near certainty that to do otherwise will lead to loss of life.

34 E/CN.4/2005/7, paragraphs 71- 74. Jiménez Vaca v. Colombia, Human Rights Committee (25 March 2002), paragraph 7.3, (“[T]he Committee points out that article 6 of the Covenant implies an obligation on the part of the State party to protect the right to life of every person within its territory and under its jurisdiction.”).

35 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Principle 9 (“In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”).

37 Baboeram v. Suriname, Human Rights Committee (4 April 1985), paragraph 14, links the “most serious crimes” and use of lethal force standards.

38 In Baumgarten v. Germany the Human Rights Committee (31 July 2003) found that shooting persons attempting to cross the border from the Former German Democratic Republic was a violation of the right to life. (“The Committee recalls that even when used as a last resort lethal force may only be used, under article 6 of the Covenant, to meet a proportionate threat.”)

40 Suárez de Guerrero v. Colombia, Human Rights Committee (31 March 1982), paragraph 13.2, (“the police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions”). Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Principle 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 circumstances of the incident”).

41 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Principle 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”).