Human rights and humanitarian law for police and security forces

444 Pages·2014·2.66 MB·English

TO SERVE
AND TO
P ROTECT
HUMAN RIGHTS AND HUMANITARIAN LAW
FOR POLICE AND SECURITY FORCES
R E F E R E N C E
International Committee of the Red Cross
19, avenue de la Paix
1202 Geneva, Switzerland
T [phone] F [phone]
E-mail:
TO SERVE
AND TO
P ROTECT
HUMAN RIGHTS AND HUMANITARIAN LAW
FOR POLICE AND SECURITY FORCES
First Edition
Cees De Rover
Second Edition
Revised and updated by Anja Bienert
2 TO SERVE AND TO PROTECT
FOREWORD TO THE SECOND EDITION
Recent decades have seen an increase in the complexity of law enforcement
operations undertaken to deal with violence that may be social, political or
economic in origin. Every day, its presence in the feld brings the International
Committee of the Red Cross (ICRC) face to face with the consequences of
such violence. Having placed the principle of humanity frmly at the centre
of its decision-making processes, our organization has adapted its response
to the growing needs of the victims of collective violence and is continually
updating its approaches in order to improve that response. The States are
also endeavouring to adapt their response to those situations. As they have
the monopoly on legitimate recourse to force, they have a particular
responsibility to ensure that their agents comply with the rules and standards
of international law when responding to violence.
The police and security forces are key players in our sphere of activity.
Although they are often heavily criticized for violations of which they may be
guilty, they are also the source of solutions as one of their primary functions
is to guarantee the rights of each individual. In that sense, they are dialogue
partners of importance to our organization, not only because they enable us
to gain access to victims of collective violence but also because of their work
on behalf of those same victims. At times they may also derive direct beneft
from our work when their members are themselves victims of such violence.
The ICRC engages in direct dialogue with those responsible for violence,
regardless of whether they are State or non-State players. Indeed, that is one
of its specifc characteristics. In the 1990s the ICRC began to realize how vital
it was to draw on professional law enforcement expertise in its dialogue with
police and security forces. The ICRC recruited former police ofcials in order
to gain a better understanding of police dynamics and to be in a position to
contribute to solutions to the difculties encountered by police ofcials in
the exercise of their duties. As a result of the authoritative insights provided
by those police experts, our organization has been able to develop a peer-
to-peer approach which sets out to provide support for police forces in their
eforts to incorporate the rules and standards of international law into their
procedures. In pursuing that dialogue, our organization seeks to go beyond
a purely legal or theoretical approach, which is why we also take an interest
in both professional and operational practices.
FOREWORD TO THE SECOND EDITION 3
Our organization now has more than 20 years of experience of working with
the police and security forces of some 80 countries worldwide. Far from being
abstract or theoretical, our dialogue is enriched by our operational experience,
which makes us aware of the human cost of police interventions that do not
comply with the rules and standards of international law.
For the past 15 years, To serve and to protect has been a reference manual
providing guidance for the ICRC’s dialogue with police forces. This revised
edition draws on our experience during that period.
Peter Maurer
President of the International Committee of the Red Cross
Geneva, December 2013
4 TO SERVE AND TO PROTECT
FOREWORD TO THE FIRST EDITION
The International Committee of the Red Cross (ICRC) is no doubt best known
for its humanitarian protection and assistance activities in situations of armed
confict – as well as for its relentless attempts to promote an active respect
for the rules of international humanitarian law. ICRC attempts to promote
adherence to international humanitarian law have, perhaps inevitably,
focused primarily on members of the armed forces worldwide. However, the
ICRC is aware that the nature of situations of armed confict is changing. The
majority of present-day armed conficts are of a non-international character
(i.e. they are taking place within the territory of one State). Most of these
situations are not formally recognized as non-international armed confict
– to which certain rules of international humanitarian law legally apply. The
key actors in present-day conficts frequently include members of the police
and security forces as well as the armed forces. A complication is created
through a blurring of the absolute distinction between tasks typically
belonging to the armed forces and those typically belonging to the police
and security forces – with one readily taking on apparent responsibilities of
the other. Contemporary situations of armed violence characterize themselves
through a widespread and systematic disregard of fundamental principles
of humanity. The right to life, liberty and security of the civilian population
are frequently not respected and by consequence there are many victims
requiring protection and assistance.
The ICRC has recognized that in order to ensure adequate protection and
assistance to victims of situations of armed violence it is important – indeed
essential – to focus attention on members of police and security forces as
well as on members of the armed forces. The best protection that can be
ofered to (potential) victims of armed violence is in ensuring respect for
fundamental principles of humanity in the conduct of operations not only of
the armed forces but also of the police and security forces. Those fundamental
principles of humanity can be drawn from both international humanitarian
law and international human rights law.
FOREWORD TO THE FIRST EDITION 5
This Manual compiles the relevant rules and principles of international
humanitarian law and international human rights law and places them in the
context of operational situations in which they must be respected and applied
by members of armed forces and of police and security forces alike. The
Manual will be used in ICRC’s dissemination activities to armed and security
forces. It also seeks to provide information and support to all those involved
in the development of professional, ethical and protective law enforcement
structures and practices.
Cornelio Sommaruga
President of the International Committee of the Red Cross
Geneva, February 1998
TABLE OF CONTENTS 7
TABLE OF CONTENTS
BIOGRAPHIES 14
PREFACE 16
ACKNOWLEDGEMENTS 19
ABREVIATIONS AND ACRONYMS 20
GENERAL SYNOPSIS 25
INTRODUCTION 65
Part I
INTERNATIONAL LAW
AND INTERNATIONAL HUMAN RIGHTS LAW
CHAPTER 1
INTERNATIONAL LAW
1.1 Introduction 75
1.2 Subjects of international law 75
1.3 The sources of international law 77
1.3.1 Background information 77
1.3.2 The law of treaties 77
1.3.3 Customary law and jus cogens 83
1.3.4 Additional sources (including soft law) 85
1.4 The relationship between international law and national law 86
1.4.1 State sovereignty and State responsibility 87
1.4.2 State jurisdiction 89
1.4.3 Criminal jurisdiction 89
1.4.4 Immunity 92
1.5 International human rights law and international humanitarian law 94
1.6 Selected references 95
CHAPTER 2
INTERNATIONAL HUMAN RIGHTS LAW
2.1 Introduction 99
2.2 Historical overview 99
2.2.1 Background information 99
2.2.2 1919: The League of Nations 100
2.2.3 1945: The United Nations 101
8 TO SERVE AND TO PROTECT
2.3 International human rights standards 101
2.3.1 Background information 101
2.3.2 The Charter of the United Nations 102
2.3.3 The International Bill of Human Rights 103
2.3.4 Other major human rights treaties 104
2.3.5 Reservations to human rights treaties 104
2.3.6. Important soft law instruments for law enforcement 105
2.4 The United Nations and human rights 106
2.4.1 Background information 106
2.4.2 Security Council and General Assembly 106
2.4.3 The Economic and Social Council 110
2.4.4 The Human Rights Council 111
2.4.5 The Ofce of the High Commissioner for Human Rights 115
2.4.6 Monitoring mechanisms and machinery 115
2.5 Regional arrangements 117
2.5.1 Background information 117
2.5.2 Africa 117
2.5.3 The Americas 119
2.5.4 The League of Arab States 122
2.5.5 Asia and the Pacifc 123
2.5.6 Europe 124
2.6 Selected references 127
Part II
LAW ENFORCEMENT FUNCTION AND RESPONSIBILITIES
CHAPTER 3
LAW ENFORCEMENT ORGANIZATION,
CONCEPTS AND GOVERNING PRINCIPLES
3.1 Introduction 133
3.2 Law enforcement and human rights 134
3.3 Law enforcement responsibilities and powers 135
3.4 Ethics in law enforcement 138
3.4.1 The relevance of ethics in law enforcement 138
3.4.2 Personal ethics, group ethics, professional ethics 139
3.5 Law enforcement and international soft law standards 141
3.5.1 Code of Conduct for Law Enforcement Ofcials (CCLEO) 141
3.5.2 Basic Principles on the Use of Force and Firearms (BPUFF) 143
3.6 Orders, procedures and sanctions in law enforcement 144
3.7 Selected references 145
CHAPTER 4
PREVENTING AND DETECTING CRIME
4.1 Introduction 147
4.2 The legal framework 149
4.2.1 The right to a fair trial 149
4.2.2 The right to privacy 154
4.2.3 The obligation of non-discrimination 155