“States often face situations in which their officials have to use force to maintain or restore public security, law and order in armed conflicts or situations of violence that do not meet the threshold of applicability of international humanitarian law (IHL). Force in law enforcement operations can be used by persons who exercise state powers, in particular, police and military forces; such use of force is mainly governed by international human rights law and domestic law. The use of force in law enforcement operations has to be strictly regulated by states. In particular, states must ensure that national legislation is brought into line with their international obligations and sanction their officials if they have used force in an excessive or otherwise arbitrary way”.[1]

Introduction

In this article, we will be discussing the use of force by law enforcement, like police officers and other people in authority. We will provide a general background reviewing morals as well as ethics and the legality involved in the professional realm. We will further discuss these three aspect under the purview of International law as well as United State’s rules and regulations.

“The legal aspects surrounding the use of deadly force in the United States are changing in a significant way. Police may use deadly force only to protect themselves or other innocent persons from serious bodily injury or death. Appropriate force may be used to arrest a malefactor or a fugitive from jail or prison. The documented, excessive percentage of deaths to blacks and hispanics from “police intervention” is a festering sore in American society. Numerous groups are aroused by the situation and will force some sort of controls nationwide on the use of deadly force by police. The changing climate surrounding civilian use of deadly force is dramatic and worrisome. At present, retreat carried to the extreme is the prudent legal course for the civilian victim of attack to take. Deadly force may be prudently used only when faced with immediate, fatal attack. Ethical considerations do not, in this instance, mesh with the law as it seems to be diverging from the traditional common law concepts of self-defense and sanctuary in the home. The defence of dependents is an ethical imperative that may run counter to man-made laws. Ethical considerations must be given precedence especially since the history of the United States Supreme Court decisions clearly demonstrate that law and morality are not necessarily related.”[2]

WHAT WOULD COMPRISE “THE USE OF FORCE”?

The use of force contains certain elements, such as – for example compromising or curtailing someone’s fundamental rights or any form of unlawful detention that will curtail someone’s right to movement and among many. The use of force by states is controlled by both customary international law as well as the treaty law.[3]

The UN Charter reads in article 2(4):

“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”

This principle is now considered to be a part of customary international law, and has the effect of banning the use of armed force except for two situations authorized by the UN Charter.[4] However, Article 51 also states that: “Nothing in the present Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a member of the United Nations.”[5] Article 51 states as following:

“Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”[6]

In the United States of America, various states have their own amended version when it comes to “the use of force”. Self-defence or protecting one’s property is a great example of this. There is something called the “Castle’s Doctrine”. A castle doctrine, also known as a castle law or a defence of habitation law, is a legal doctrine that designates a person’s abode or any legally occupied place (for example, an automobile or a home) as a place in which that person has protections and immunities permitting one, in certain circumstances, to use force (up to and including deadly force) to defend oneself against an intruder, free from legal prosecution for the consequences of the force used.[7] This doctrine permits the use of acceptable force that can be up to deadly force as well if they are invaded within the property. For instance, if an intruder breaks into a person’s home, the land owner may choose to debilitate or kill the intruder or thief with disparate force not considering the fact whether or not the burglar is armed. The property holder, in this instance, has a reasonable conviction that their life is in grave danger and will have a legitimate defence under the Castle Doctrine to defend himself in a court of law.

International humanitarian law: “Law enforcement operations are also carried out during armed conflict, outside or alongside the conduct of hostilities.4 While the rules governing the conduct of hostilities do not apply to such operations, IHL does contain a few provisions on the use of force in law enforcement operations:

• Article 43 of the Hague Convention IV of 1907 provides that the Occupying Power “shall take all … measures … to restore and ensure … public order and safety”.
• In the same vein, Article 42 of the Geneva Convention III relative to the Treatment of Prisoners of War of 1949 establishes that the use of weapons against those “who are escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances”.

Domestic law

In accordance with the principle of legality (see below), provisions on the use of force in law enforcement operations are also to be found in domestic legal orders. These can take a variety of forms within the domestic legal and administrative framework related to security (e.g. laws, military and police manuals, rules of engagement, standard operating procedures), provided that they respect international obligations and standards”.[8]

As stated earlier, various states have their own rules when it comes to acceptable “use of force”. Florida is one such State, in the year 2005, it “passed the infamous ‘Stand-Your-Ground’ law, which states that any law-abiding person in any rightful place or situation had no duty to retreat when met with force. Suppose they believe using force, including deadly force, is necessary to prevent a forcible felony, injury, or death to themselves or another person. In that case, they have a statutory right to stand their ground and apply reasonable non-deadly or deadly force on the offender. For instance, if Person A is approaching their car in a public parking lot and witnesses Person B assaulting another person within the same lot, they must first use verbal force to deter the crime as it is a reasonable cause of action. Should this first response prove unsuccessful, Person A is well within their rights to draw out their firearm and threaten to shoot Person B. If the offender still proceeds to attack the victim violently, the use of deadly force will be a reasonable option. Note that stand-your-ground laws do not necessarily justify the use of disproportionate force as a first response. There needs to be evidence of the potential for death or great bodily harm to the defendant or others. Furthermore, deadly force is only applicable on an essential basis.”[9]

BASIC PRINCIPLES ON THE USE OF FORCE AND FIREARMS BY LAW ENFORCEMENT OFFICIALS

1. “Whereas the work of law enforcement officials is a social service of great importance and there is, therefore, a need to maintain and, whenever necessary, in order to improve the working conditions and status of these officials,
2. Article 3 of the Code of Conduct for Law Enforcement Officials provides that law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty,
3. However, the Seventh Congress, in its resolution 14, inter alia , emphasizes that the use of force and firearms by law enforcement officials should be commensurate with due respect for human rights,
4. Whereas the Economic and Social Council, in its resolution 1986/10, section IX, of 21 May 1986, invited Member States to pay particular attention in the implementation of the Code to the use of force and firearms by law enforcement officials, and the General Assembly, in its resolution 41/149 of 4 December 1986, inter alia , welcomed this recommendation made by the Council,
5. It should be considered that it is appropriate that, with due regard to their personal safety, consideration should be given to the role of law enforcement officials in relation to the administration of justice, to the protection of the right to life, liberty and security of the person, to their responsibility to maintain public safety and social peace and to the importance of their qualifications, training and conduct.”[10]

[1] the_use_of_force_in_law_enforcement_operations.pdf (icrc.org)

[2] Wilber CG. Deadly force: some human and ethical considerations. Am J Forensic Med Pathol. 1982 Jun;3(2):165-77. PMID: 7114021. Retrieved from: Deadly force: some human and ethical considerations - PubMed (nih.gov)

[3] Pobjie, Erin (2024). Prohibited Force: The Meaning of ‘Use of Force' in International Law. Cambridge University Press. doi:10.1017/9781009022897. ISBN 978-1-009-02289-7.

[4] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Jurisdiction of the Court and Admissibility of the Application) [1984] ICJ Rep 392 [1] Archived 1 March 2015 at the Wayback Machine

[5] "Repertory of Practice of United Nations Organs — Codification Division Publications".

[6] "Repertory of Practice of United Nations Organs — Codification Division Publications".

[7] "Assembly, No. 159, State of New Jersey, 213th Legislature, The "New Jersey Self Defense Law"" (PDF). May 6, 2008. Archived from the original (PDF) on 2012-09-02. Retrieved 2009-03-19.

[8] the_use_of_force_in_law_enforcement_operations.pdf (icrc.org)

[9] Reasonale Force in Law | Definition, Purpose & Examples | Study.com

[10] Basic Principles on the Use of Force and Firearms by Law Enforcement Officials | OHCHR