17 June 2020
Research from the University of Pretoria’s Faculty of Law has become a global benchmark for a major US-based study on the use of force by police in America.
In the wake of the deaths of George Floyd, Laquan McDonald, Eric Garner, Michael Brown, Ahmaud Arbery, Tony McDade, Regis Korchinski-Paquet, Breonna Taylor and many others at the hands of the police, the new study was released by the University of Chicago’s Law School.
The starting point of the study is what it identifies as ‘the three most important sources on police use of force in international law’. These are the United Nation’s (UN) 1979 Code of Conduct for the Police, the 1990 Basic Principles on the Use of Force, and the international standards as set out by UP Professor Christof Heyns in a 2014 report to the UN Human Rights Council. He presented this report to the Council while serving as the special advisor to the UN on arbitrary killings.
In this report, Prof Heyns recommended the UN adopt specific guidance on the use of less-lethal weapons, an underdeveloped area of international law, where the uncertainties often lead to abuse, injury and death, especially in the context of demonstrations. The UN accepted his recommendation and Prof Heyns, with colleagues from UP’s Faculty of Law, then headed the process of drafting the guidelines. These guidelines set out the UN’s position of the use of batons, tear gas, pepper spray, Tasers and other less-lethal weapons. They have been used widely in dealing with recent demonstrations, for example in Chile, Georgia, Hong Kong, Iraq, and Jamaica. The advance edition of the United Nations Human Rights Guidance on the Use of Less-Lethal Weapons was launched in 2019. The final version will be released at the end of June 2020.
The University of Chicago study, Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Law and Standards, compares and analyses in depth the policies and practices of 20 police departments of the 20 largest cities in the US with the norms set by international law.
According to the study leader, Professor Claudia Flores, of the University of Chicago’s Law School, none of the police departments have a use-of-force policy which meets the international standards. Instead, in some cases, policies justify lethal use of force for ‘escaping suspects’ or ‘fugitives’, or even more generally for ‘self-defense’ or ‘prevention of crime’, regardless of the threat posed to officers or civilians.
The study reveals that ‘Ultimately, deep, structural reform of the United States’ law enforcement system is needed. The police in the United States kill more people than any of our peer nations. In a 24-day period in 2015, police in the United States shot more people than the police did in England and Wales in 24 years. By all measures, the current system is broken. As this report demonstrates, the very laws and departmental policies meant to guide police officers on how to make the difficult, life and death decisions required of them, do not comply with human rights’.
The University of Chicago study draws extensively on a 2015 study by Amnesty International on the use of force by the police worldwide. This study also took as a central reference point the exposition of the international standards in the 2014 UN Report by Prof Heyns. In particular, they relied on the ‘protect life principle’ which, according to Prof Heyns, “lies at the core of contemporary international law on police use of force – and the violation of which has caused the tragedies we have witnessed all too often in recent times.”