UNDERSTANDING POLICING A resource for human rights activists

Anneke  Osse

Police can be violators of human rights, but at the same time they play an essential role in the protection of human rights. Policing is thus at the heart of a broad spectrum of human rights discourses. Developments in the way in which police have been perceived and addressed by human rights organizations have reflected developments that have taken place within the broader human rights discourse: a focus on case-based concerns targeting State officials has been replaced by an increasing role for engagement with State officials in seeking to prevent human rights violations.

UNDERSTANDING POLICING A resource for human rights activists Anneke Osse Amnesty International Nederland Keizersgracht 177 P.O. Box 1968 1000 BZ Amsterdam The Netherlands www.amnesty.nl amnesty@amnesty.nl Cover & Lay out by Onck Graphic Design www.onck.nl All photographs from police hats were taken from: Internationale politiepettenverzameling (international police hats collection), published by IPA Groningen & Regiopolitie Groningen, the Netherlands, 2003. We particularly would like to thank Mr. H. Buurma Printed by Drukkerij Giethoorn ten Brink, the Netherlands All rights reserved First published in 2006 © 2007 Amnesty International Nederland ISBN: 90 6463 175 1 ISBN-13: 978 90 6463 175 7 Original language: English No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording and/or otherwise without prior permission of the publishers. 5 Foreword Police can be violators of human rights, but at the same time they play an essential role in the protection of human rights. Policing is thus at the heart of a broad spectrum of human rights discourses. Developments in the way in which police have been perceived and addressed by human rights organizations have reﬂected developments that have taken place within the broader human rights discourse: a focus on case-based concerns targeting State ofﬁcials has been replaced by an increasing role for engagement with State ofﬁcials in seeking to prevent human rights violations. Strategies for preventing human rights violations can vary from the confrontational to the cooperative. Approaching the police as human rights protectors presents an opportunity for increased cooperation in a search for areas of mutual interest based on a common understanding that human rights and policing go hand in hand. Human rights do not impede policing; on the contrary, they provide the police with a space in which to operate and use their powers lawfully. Police should not be opponents of human rights advocates but can rather be counterparts, seeking to achieve similar goals. This Resource Book builds on the assumption that an approach by human rights organizations that acknowledges the concerns and realities of the police and that understands police language, will be more effective than an approach that sets itself apart and criticises from the sidelines. Clearly this approach requires a police agency that is receptive to human rights concerns and human rights based reforms where necessary. Amnesty International could play an important role in furthering discourses on security and supporting police reform programs in line with human rights principles. In order to achieve this, a more thorough understanding is needed of the security sector and its workings. This Resource Book hopes to contribute to such an understanding. Eduard Nazarski Director Amnesty International, the Netherlands 7 Acknowledgements This Resource Book would not exist if not for the help of many people. A feedback group of recognised experts from various regions of the world have spent a great deal of time in formulating their comments and feedback on each Chapter. We would particularly like to thank the following people: Ralph Crawshaw Research Fellow Human Rights Centre, University of Essex, UK Mr. G.P. Joshi Police Program Coordinator, Commonwealth Human Rights Initiative, India Rachel Neild Open Society Justice Initiative, USA Gillian Nevins International Secretariat, Amnesty International, UK Piet van Reenen University of Utrecht/ Consultant, the Netherlands Lars van Troost Head of External Relations, Amnesty International Dutch section, Netherlands In addition to these, a number of people both within Amnesty International as well as from within the police and academic worlds have provided input to this Resource Book. We cannot stress enough the value of all these contributions. We would particularly like to mention: Otto Adang, Tim Cahill, Francis Campbell, Claudio Cordone, Quirine Eijkman, Rob Geurtsen, Denise Graf, Karl-Heinz Grundböck, Kees Hindriks, Martha Huggins, Alenka Jerse, Gerbrig Klos, Blaz Kovac, Marco Leidekker, Philip Luther, Liz Mottershaw, Vivienne O’Connor, Tim Parritt, Collette Rausch, Mary Rayner, Ed Rees, Darius Rejali, Brian Ruane, Rob Ruts, Gita Sahgal, Cristina Sganga, Niels Uildriks, Koosje Verhaar, Jos Verpaalen, Doris Weidig, Lucia Withers, Walter Witzersdorfer, Brian Wood and Katarina Zidar. Finally, a special word of thanks to Emma Gardner who has done a tremendous job editing this resource. This second edition of the Resource Book includes some minor amendments and updates. Please note that this second revised edition of the Resource Book includes some minor amendments and updates. It goes without saying that a Resource Book like this one is never truly complete. The compiling of useful instruments and documents is an ongoing process. New studies are carried out and projects are continuously set up all over the world to improve policing. This Resource Book hopes to contribute to such initiatives. We would like to invite users of this resource to share their experiences with us and contact us if they know of new initiatives not yet described so that we can incorporate these either in a subsequent edition or separate publications. You can contact us at amnesty@amnesty.nl. Anneke Osse Amsterdam, 16 november, 2007 Summary of Contents Foreword 5 Acknowledgements 7 Table of Contents 11 An introduction to ‘Understanding policing’ 19 Summary 24 Conclusions 34 Part I: Introduction 39 1. Human Rights and the Police 41 Part II: Achieving the Objectives of Law and Order 51 2. State Responsibility for Law and Order 55 3. Police Functions 79 4. Operational Independence 111 Part III: Police Powers 121 5. Police Use of Force 125 6. Arrest and Detention 147 7. Criminal Investigation 165 Part IV: Enhancing Police Professionalism 181 8. Police Accountability 185 9. Recruitment, Selection and Training 225 10. Engagement with Policing 251 Appendices 277 11 Table of Contents Foreword 5 Acknowledgements 7 Table Of Contents 11 An introduction to ‘Understanding Policing’ 19 Introduction 19 Aims of this Resource Book 20 Resources used 21 How to use this resource 22 Overview of Chapters 22 Summary 24 Conclusions 34 Part I. Introduction 39 1. Human Rights and the Police 41 1.1 Introduction 41 1.2. ‘Police’ or ‘law enforcer’? 41 1.3. Police and human rights 45 1.4. Police and human rights advocacy 48 1.5. Summary 49 Part II. Achieving the Objectives of Law and Order 51 Achieving the Objectives of Law and Order: Introduction 52 2. State Responsibility for Law and Order 55 2.1. Introduction 55 2.2. Order 55 2.2.1. The right to security and the duty to maintain order 55 2.2.2. Rule of law: a precondition for order 58 2.3. State responsibility 59 2.4. Security and justice systems 61 2.4.1. Introduction 61 2.4.2. The security system 62 2.4.2.a. The military 62 2.4.2.b. Internal Security Agencies 65 12 Understanding Policing 2.4.2.c. Private security providers 67 2.4.3. The criminal justice system 68 2.5. Order or disorder? 70 2.6. A state of emergency 72 2.6.1. Derogation of human rights under a state of emergency 72 2.6.2. Restrict or derogate? 73 2.6.3. Absolute rights 74 2.6.4. Terrorism 74 2.7. Summary 76 3. Police Functions 79 3.1. Introduction 79 3.2. Police functions 79 3.2.1. Three basic police functions 80 3.2.2. Operationalizing police functions 81 3.2.3. Additional Functions 84 3.3. Organizing police functions 84 3.3.1. Centralisation and integration of police functions 85 3.3.2. Human Resources 88 3.3.2.a. Numbers 88 3.3.2.b. Representativeness of police personnel 90 3.3.3. Financial resources 91 3.4. Policing Philosophies 94 3.4.1. Crisis policing 94 3.4.2. Authoritarian policing 95 3.4.3. Community policing 95 3.4.4. Problem Oriented Policing 102 3.4.5. Information/Intelligence led policing 103 3.4.6. Concluding remarks on policing philosophies 104 3.5. Summary 107 4. Operational Independence 111 4.1. Introduction 111 4.2. Policing is a political activity 111 4.2.1. Vertical perspective: Police and State 111 4.2.2. Horizontal perspective: Police and public 112 4.2.3. Policing is balancing 115 4.3. Operational independence 116 4.3.1. Introduction 116 4.3.2. Operational independence and accountability 116 4.3.3. Discretion 117 4.3.4. Threats to operational independence 118 4.4. Summary 119 13 Part III. Police Powers 121 Police Powers: Introduction 122 5. Police Use of Force 125 5.1. Introduction 125 5.2. Key human rights principles relating to the use of force and ﬁrearms 126 5.3. What the standards don’t say 129 5.4. Types of force 130 5.4.1. Introduction 130 5.4.2. Restraint techniques/equipment 132 5.4.3. Irritant sprays 132 5.4.4. Rubber bullets and plastic baton rounds 133 5.4.5. Electro-shock weapons 133 5.4.6. Use of dogs 133 5.5. How to use force lawfully 134 5.5.1. Introduction 134 5.5.2. Tactical considerations when using force in police practice 134 5.5.3. Selection, training and qualiﬁcation of ofﬁcers 136 5.5.4. Use of ﬁrearms 136 5.5.5. Storage of ﬁrearms 138 5.5.6. Reporting procedures 139 5.5.7. Investigations following an incident 139 5.6. Policing demonstrations – public order management 139 5.6.1. Key human rights principles relating to public order management 140 5.6.2. What the standards don’t say 141 5.6.3. How to exercise public order management 141 5.7. Summary 144 6. Arrest and Detention 147 6.1. Introduction 147 6.2. Key human rights principles relating to arrest and detention 148 6.2.1. Key principles 148 6.2.2. International and regional oversight 151 6.2.3. Prohibition of racial or ethnic proﬁling 152 6.3. What the standards don’t say 153 6.3.1. Concerning arrest 153 6.3.2. Concerning detention 154 6.4. Preventive and administrative detention 154 6.5. Lawful arrest and detention in practice 156 6.5.1. Introduction 156 6.5.2. How to carry out a lawful arrest 156 6.5.3. How to carry out lawful police detention 160 6.6. Summary 162 14 Understanding Policing 7. Criminal Investigation 165 7.1. Introduction 165 7.2. Key human rights principles relevant to criminal investigation and suspect interview 166 7.3. What the standards don’t say 168 7.4. How to carry out criminal investigation 169 7.4.1. Introduction 169 7.4.2. Aim of the investigation 169 7.4.3. Start of an investigation 170 7.4.4. Methods of investigation 171 7.4.4.a. Gathering information 171 7.4.4.b. The use of forensics 172 7.4.4.c. Scene of crime 173 7.4.5. When to choose what to do 173 7.5. How to carry out a suspect interview 174 7.6. Summary 180 Part IV. Enhancing Police Professionalism 181 Enhancing Police Professionalism: Introduction 183 8. Police Accountability 185 8.1. Introduction 185 8.2. “A balanced system of multiple actors”: Four areas of accountability 188 8.3. What the standards say about accountability 191 8.3.1. Accountability and the right to remedy 191 8.3.2. UN Code of Conduct & the Basic Principles 191 8.3.3. The European Code of Police Ethics 193 8.3.4. What the standards do not say 195 8.4. Four areas of police accountability 195 8.4.1. Internal accountability 195 8.4.1.a. Chain of command responsibility 196 8.4.1.b. Reporting procedures 197 8.4.1.c. Mechanisms for receiving and dealing with complaints from members of the public 197 8.4.1.d. Disciplinary procedures 199 8.4.1.e. Criminal procedures 201 8.4.1.f. Disciplinary or criminal procedures? 202 8.4.1.g. Whistle-blowing 203 8.4.2. Accountability to the State 205 8.4.2.a. Executive 205 8.4.2.b. Judiciary: legal accounability 207 8.4.2.c. Legislature: Parliamentary oversight of the police 208 8.4.3. Public accountability 209 8.4.3.a. Community responsiveness 210 8.4.3.b. The media, NGOs and academics 211 15 8.4.4. Independent external accountability mechanisms 212 8.4.4.a. National Human Rights Institutions (NHRIs) 212 8.4.4.b. Police speciﬁc oversight bodies 215 8.4.4.c. Other forms of independent oversight 219 8.5. Police accountability: an integral picture 219 8.6. Summary 220 9. Recruitment, Selection and Training 225 9.1. Introduction 225 9.2. What the standards say on recruitment, selection and training 226 9.3. Recruitment and selection 228 9.3.1. Introduction 228 9.3.2. Recruitment 228 9.3.2.a. General principles 228 9.3.2.b. Recruiting police leadership 231 9.3.2.c. Recruitment in situations of reform 231 9.3.3. Selection 232 9.3.3.a. General principles 232 9.3.3.b. Vetting 234 9.3.4. Promotion/career development 235 9.4. Police training 236 9.4.1. Introduction 236 9.4.2. Police training in practice 236 9.4.2.a. Basic police training in practice 236 9.4.2.b. Training in the use of force 239 9.4.2.c. Training in investigative skills 240 9.4.3. Assessing police training from a human rights perspective 241 9.4.4. Follow-up to basic training 247 9.5. The effects of recruitment, selection and training 247 9.6. Summary 248 10. Engagement with Policing 251 10.1. Introduction 251 10.2. Amnesty International’s work in practice 252 10.2.1. Introduction 252 10.2.2. Gathering information: research and Work On Own Country 252 10.2.2.a. Research carried out by the International Secretariat 252 10.2.2.b. Research carried out by Amnesty International sections and structures 253 10.2.3. Campaigns and actions 253 10.2.3.a. Introduction 253 10.2.3.b. Police as allies 253 10.2.3.c. Targeting police conduct 254 10.3. Engagement with the police 256 10.3.1. Brief historical overview of Amnesty International’s position on engagement with the police 256 16 Understanding Policing 10.3.2. Dilemmas involved in engagement 259 10.3.3. Possible solutions 261 10.3.4. Local human rights NGOs and engagement 265 10.3.5. Engagement as part of police reform initiatives 268 10.4. Engagement through training and human rights education (HRE) 270 10.5. How to organise approaches to police and decide what to do? 273 10.6. Summary 275 Appendix A: Contextual Analysis & Assessment Tool 279 Introduction 279 Finding information 280 Situational analysis 282 Legislation 283 Accountability structures 284 Internal structure of the police 286 Analysing police operations 289 Use of force and ﬁrearms 289 Public order management 290 Arrest and police detention 291 Criminal investigations 292 After the contextual analysis 293 Appendix B: Bibliography 297 Appendix C: Amnesty International reports 305 Appendix D: Human rights treaties and standards 309 Appendix E: Glossary 311 Appendix F: Acronyms 317 Appendix G: Relevant websites 319 Appendix H: International law applicable to disturbances, tensions and armed conﬂicts 321 An introduction to ‘Understanding Policing' 19 An introduction to ‘Understanding Policing’ Introduction The police are one of the key State agencies targeted for criticism by Amnesty International (AI) and many other human rights organizations. In Shattered lives. The case for tough international arms control, published in 2003, Amnesty International states, “The evidence strongly suggests that most of the victims [of torture] were people suspected or convicted of criminal offences. Most of the torturers were police ofﬁcers who used armed threats and violence to subdue their victims.”1 Countless examples of police violating the basic rights of the people they are supposed to serve have been documented, ranging from torture and other forms of cruel, inhuman and degrading treatment, to preventing the exercise of legitimate rights to assemble and associate, jeopardizing equal access to justice, and failing to protect basic rights, especially for those vulnerable groups such as women and children. Police have neglected, ignored, and failed to respect basic rights to life, liberty and security in all regions of the world. The opposite is true as well: police have positively contributed to peoples’ full enjoyment of their rights. Police have prevented crimes from being committed, have ensured that people can safely demonstrate for their rights, have facilitated smooth political transitions, have investigated colleagues who have carried out crimes of all sorts, have ‘blown the whistle’ on their superiors, and have been supportive of political and legal reforms. No doubt due to this fact that police are both human rights violators as well as protectors, the relationship between many human rights organizations (including Amnesty International) and the police has often been characterized by ambiguity. Human rights advocates frequently tend to feel somewhat uncomfortable with policing issues – and very often for the right reasons, as can be seen in the citation given above. Human rights advocates tend to focus on police misconduct, rather than on strengthening the police in order to prevent future violations. A study carried out by Amnesty International- Netherlands in which Amnesty International’s recommendations on policing were reviewed concluded that many of these still “only address speciﬁc 1 ) Amnesty International, operational aspects of policing without referring to the larger issue of 2003, Shattered lives. The case for tough international arms democratic accountability.”2 Doing so requires expertise about ‘the police’ as control, p.27. an institution, and ‘policing’ as a function: something to which this Resource 2 ) Amnesty International Book hopes to contribute. – Netherlands, 2004, Amnesty International’s recommendations on policing. A review and guide, p. 7. 20 Understanding Policing Aims of this Resource Book Understanding Policing aims to clarify practical concepts as well as international and other standards that relate to policing. It thereby seeks to facilitate the assessment of police agencies in particular countries. Such assessments are fundamental to developing effective research and campaigning strategies that seek to inﬂuence policing as a means of improving respect for human rights and bringing conduct in line with internationally recognised human rights standards. They are also fundamental to deciding whether initiating engagement with police to achieve such aims is appropriate. The target for this resource is those working within the framework of Amnesty International’s organization. However, it also addresses the broader human rights community. Understanding Policing seeks to bring together both professional police and human rights paradigms and provides an introduction to literature from both these backgrounds. Policing and human rights are sometimes treated as if they are two separate ﬁelds. Literature, both academic and that related to police practice and the work of human rights organizations, tends to focus on either one of the ﬁelds, neglecting the inherent links. This Resource Book aims to bring together these different ﬁelds. Moreover, Understanding Policing aims to explain differences in language that often hamper communication between the human rights community and the police. Understanding Policing seeks to deﬁne a common language and establish benchmarks for a human rights based assessment of police agencies, from these diverse sources. These benchmarks will not lead directly to the formulation of recommendations for policing but rather to a set of questions and considerations to be kept in mind when conducting research on police in a given country or when undertaking a contextual analysis to help identify why police institutions fail to uphold human rights standards. The basic assumption underlying this Resource Book is that in order to achieve effective intervention on the issue of police conduct, it is essential to have a thorough understanding of policing itself. To treat the police as if they were the same everywhere, regardless of national contexts would be misguided and inappropriate. Countries differ in their resources as well as their cultures, and this affects policing. Instead of prescribing exactly what police should look like, this Resource Book aims to help understand the basic functions of policing in a society and with what minimal norms and principles it should comply. To some this book may appear to focus on contexts most common in industrialised countries where police agencies are well resourced and operate in cultural contexts that have adopted receptive attitudes towards human rights. More speciﬁcally, some have argued that this Resource Book focuses on the Anglo-Saxon context rather than taking a neutral perspective. However, we believe that the values discussed in this Resource Book apply universally – regardless of resources or cultural contexts. Police are bound by international human rights standards across the globe. An introduction to ‘Understanding Policing' 21 These standards have been adopted by the United Nations, representing global values and principles. While it is no doubt true that policing in countries lacking ﬁnancial and other resources presents particular inherent challenges, and the implementation of certain standards will sometimes have to be carried out quite differently in these countries than in those not facing such problems, international norms apply globally and are to be used as indicators to assess human rights compliance by agencies worldwide. Resources used Understanding Policing builds on a range of work undertaken within Amnesty International to date. We do not intend to repeat what has already been published but will extensively refer to existing reports and materials available within the Amnesty International movement. This resource aims to bring together and build on existing research, action and engagement experiences and expertise throughout the movement to further enhance the organization’s relevance and effectiveness in this ﬁeld. As this Resource Book is intended as a practical tool for human rights activists within the ﬁeld, we have collected reports and references from other non- governmental organizations (NGOs) and others that we believe will be useful for further reading. Whenever possible we have indicated where useful resources are available on the Internet. With regard to human rights standards, we focus on UN instruments and do not refer to regional standards – the only exception being standards adopted within the Council of Europe’s jurisdiction since the Council of Europe, including its ‘Police and Human Rights Program’, has published a fair amount of interesting materials in this ﬁeld. The ‘European Code of Police Ethics’ based on the 1979 ‘Declaration on the Police’ will be referred to in particular. Note that most UN standards with direct relevance for policing, including the UN Code of Conduct for Law Enforcement Ofﬁcials, the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment and the Basic Principles on the Use of Force and Firearms, are so-called ‘soft law’ in that they are non-binding declarations and principles. It should be noted that Understanding Policing does not take a legalistic perspective, but explores the possibilities for human rights compliant policing in practice. This means that we will go beyond the international standards. We will look at how the standards can be implemented, assuming that best practice may be of interest for human rights advocates' analysis of police agencies all over the world. Note that as our focus is on policing compliant with human rights standards, we will not address police abuses as such. In addition, our focus is on ‘policing in general’. Groups requiring speciﬁc attention, such as women, refugees and children, will not be dealt with separately. 22 Understanding Policing How to use this resource We understand that not everyone will read the entire Resource Book from beginning to end. We recommend however that readers take note of the ‘Summary and Conclusions’ (hereafter) and the ‘Contextual analysis and assessment’ (Appendix A) in particular. The ‘Contextual analysis and assessment’ contains a tool to assist readers when assessing the police in a target country. We would like to stress the importance of reading the Chapters of Parts I and II of this Resource Book. Too often human rights strategies seeking to address problems that involve the police ignore the fact that the police are part of a broader security and justice system for which they cannot be held fully responsible. Similarly, sometimes human rights strategies do not fully understand the complexities of the interplay between State, public and police that requires the police to have some degree of autonomy (within boundaries) to decide on how to respond to law and order situations. Both these issues are addressed in these two Parts of this Resource Book. Throughout the Resource Book, terms that are considered relevant for a true understanding of human rights compliant policing are given in bold the ﬁrst time these are used. These terms, which are sometimes ambiguous, are explained in the Glossary, Appendix E, of this Resource Book. Overview of Chapters In drafting this Resource Book we have tried to follow a consistent format: whenever relevant we have started with an exploration of what the UN human rights standards say with regard to a particular topic. However, police actions are not, and cannot be, fully covered in rules and regulations. We therefore move on to explore what professional standards have developed to guide police actions in practice, as these can be used as benchmarks against which police can be assessed. This Resource Book is divided into four parts. Part I introduces the issues and explores the relationship between policing and human rights. Chapter 1 presents an overview of ‘Police and Human Rights’. We start by deﬁning ‘police’ and discuss how police and human rights relate to each other as well as how human rights advocates tend to perceive policing and how this has inﬂuenced human rights advocacy targeting police. Part II aims to describe the context in which the police operate. One of the core functions, if not the core function, of the State is the maintenance of order. We therefore start with an exploration of the concepts of ‘order’ and ‘disorder’ in Chapter 2, identifying the police as just one of several State agencies responsible for the maintenance of order within a broader security system whose effectiveness is dependent upon cooperation with and acceptance by civil society. An introduction to ‘Understanding Policing’ 23 In Chapter 3 we will look more closely at the objectives police are given and the resources (personnel, ﬁnancial) and philosophies employed to achieve them. We will discuss those philosophies currently in use, either by design or by default. We will focus particularly on community policing as this is a concept increasingly used by both police and human rights advocates despite the fact that there is a signiﬁcant degree of ambiguity over what exactly is meant by the term. We present a list with critical success factors to assist those assessing community policing projects in target countries. A brief evaluation of policing philosophies is presented. In Chapter 4 we will look at how police relate to their political environment. A crucial and often deﬁning element of police actions is that the police have relative autonomy in operational decisions. After having explored the prime objectives of policing, Part III focuses on the powers police are given to carry out their objectives. Chapter 5 looks at the power to use force; Chapter 6 at the powers to arrest and detain; and Chapter 7 at the task of criminal investigation (with particular focus on the suspect interview). These are the areas where human rights are most frequently abused. Finally, Part IV looks at how the police can be supported in upholding human rights principles. As police are given special powers that can have a serious impact on people’s full enjoyment of their rights, it is of utmost importance that police are held to account for their use of these powers. Chapter 8 describes both internal and external accountability mechanisms and presents a table with which police accountability in a target country can be assessed. Enhancing training and recruitment policies is often seen as a way of improving police practices. Chapter 9 takes a closer look at these human resources tools and how these can contribute to human rights awareness. It also warns against over-reliance on them. The Chapter describes how police tend to be recruited, selected and trained and makes suggestions for improvement. A list of questions has been formulated that may be of help when assessing basic police training from a human rights perspective. Finally, Chapter 10 looks at how human rights NGOs can inﬂuence police work and enhance compliance with human rights standards. Particular attention will be devoted to the issue of engagement; how can human rights advocates engage with the police, what problems might arise and how can these problems be solved? We hope this Resource Book will provide the reader with background information on policing issues within a human rights context. Moreover, we hope this resource inspires and motivates human rights advocates to commence working on, and in some situations with, the police. 24 Understanding Policing Summary “We can not emphasise too strongly that human rights are not an impediment to effective policing but, on the contrary, vital to its achievement.”1 The area of policing and human rights presents a dynamic and constantly evolving ﬁeld of study. The human rights discourse has in recent years broadened its attention to include not only the negative functions of the State and its agents as human rights violators but also the positive obligations of the State. This presents an opportunity for the police to be seen as human rights protectors. At the same time, the notion has developed that human rights are not only abused by State ofﬁcials, including the police, but by non- State actors as well. Both police and human rights advocates are striving for societies characterised by security and safety, an insight that has opened up the possibility of police and NGOs working together rather than opposing each other. The idea of police and NGOs working together is fraught with difﬁculties. Police ofﬁcers tend to have a different perspective from that of most human rights advocates. They sometimes use different language when speaking of the same issue and will reach different conclusions about cause and effect. Sometimes this is the obvious result of the different roles they have in society; sometimes they may be the result of stereotypic assumptions. This Resource Book aims to give background information on policing issues for human rights advocates intending to initiate work on policing. Achieving the objectives of law and order All countries have one or more police agencies. By and large in all these countries policing involves the maintenance of order and the prevention and detection of crime. However, police are not the only State agencies operating in this ﬁeld, nor is the achievement of these objectives the sole responsibility of the police. It is rather the State’s ultimate responsibility to maintain order in the territory over which it has effective control. States are responsible for doing so under international law, on the basis that order and security are essential conditions for people to fully enjoy all their economic, social, cultural, civil and political rights. Moreover, States are responsible for the maintenance of order as it is vital for the State’s continuity: disorder can ultimately threaten to disrupt the very existence of the State itself. The right to security, as set out 1 ) Independent commission in the Universal Declaration on Human Rights (UDHR), refers to a State’s duty on policing for Northern to provide security and maintain order. States must ensure that their ofﬁcials Ireland, 1999, A new beginning: uphold human rights standards (i.e. avoid abusing their powers in the course of policing in Northern Ireland. their duties) and protect human rights (i.e. actively ensure physical and mental The report of the independent commission on policing for security and the free exercise of fundamental rights and freedoms for all Northern Ireland (para.4.4). people within the territory over which the State has effective jurisdiction). Summary 25 Order and disorder are not fully neutral concepts. A State and its subjects may disagree over what constitutes order and disorder. There are, however, fundamental principles laid down in international law which govern how States ensure order and deal with disorder, and with which police practice should be consistent. Most notably, order must be based on the rule of law. Establishing and maintaining the rule of law is the primary legitimate means a State has to ensure order. Adhering to the rule of law means the government is bound by law, that there is equality before the law, that there are predictable and effective judicial rulings, and that human rights are integral. In order to achieve this, States establish systems and institutions including comprehensive laws, well functioning courts and independent judges and law enforcement agencies. Those working within this security and justice domain, including the police, may sometimes perceive law (and human rights) as restricting their work, but the opposite is in fact true: law makes it possible for them to do their work. The security sector includes agencies whose functions sometimes overlap with those of the police: notably military forces and the security intelligence agencies. It is important that the differences are well deﬁned, with the police clearly separated from the military. The security sector also includes non- State actors, such as private security providers. The criminal justice system is responsible for criminal investigation, prosecution and adjudication, as well as the execution of sentences. It includes such institutions as the police, prosecution, judiciary, probation and prisons services. The effectiveness of the security and justice systems as a whole, depends on the quality of the separate entities involved: the chain is as strong as its weakest link, and they all affect policing directly or indirectly. It is crucial to the effectiveness of the security system that the different agencies have clear guidelines and instructions on their respective objectives which also specify their distinct positions and lines of accountability as well as their points of interface (the police’s functions and responsibilities usually being set out in a Police Act). Human rights advocates need to be aware of the role and responsibilities of different security and justice agencies within systems established for maintaining order, so as to target their research and campaigning activities effectively. In order to assess police operations and identify those responsible for human rights failings, it is essential to understand and assess the entire system in which the police operate and on which they depend, both as it is laid out in law, regulations and policies, as well as how it is implemented in practice. Police cannot, and should not, be held responsible for misconduct, institutional miscommunication, lack of coordination, policy gaps etc., that are at the responsibility of other ‘partners’ in the security and justice domain. On the other hand, police can and should be held accountable for their own role in these processes. All sections of the security and justice sector operate under national authority and within national sovereignty. Most of them are State institutions (the obvious exceptions are private security providers, although they too are bound 26 Understanding Policing by national law) reﬂecting national (or regional or local) realities, political culture, history, people, and economy. As such, political and cultural realities shape policing. If the State system has not adopted democratic values the police is not likely to defend such values. Police come from the society they police and will adopt and express similar attitudes; as an example if these attitudes are negative towards certain members of the public the police are likely to share these attitudes. Tackling such problems will present a major challenge that necessarily requires engagement from more than just the police. Within the security and justice sector the police are seen as the primary agency responsible for ensuring security and maintaining order. The three main functions of policing are generally agreed to be: • Prevention and detection of crime • Maintenance of public order • Provision of assistance to the public Sometimes these functions are spread over a number of separate agencies (as for example in countries with separate Judicial or Investigative Police), while in others they are carried out by one centralised or decentralised police agency. Human rights oriented policing requires that the public have access to at least all these three policing functions (although police may carry out additional functions such as ﬁre ﬁghting, border control, protection of diplomats etc). For this, police need adequate resources, including ﬁnance and staff. In carrying out these functions, police can adopt different methodologies as reﬂected in different policing philosophies. There are two broad underlying perspectives that underpin these philosophies. One perspective is that of police as an instrument of State control, the assumption being that if States control their territories properly, this will result in ‘law and order’ and will guarantee security for the people in its jurisdiction. This ‘force perspective’, or vertical perspective, is clearly seen in authoritarian policing styles employed by many police agencies. The other perspective is that of police as a service provider to communities in their own areas. This ‘service’, or horizontal, perspective is seen in ‘community policing’ and its derivatives: problem oriented and intelligence led policing (although the latter can also be seen in authoritarian policing). Crisis policing is somewhat distinct in that it reﬂects the State’s incompetence in maintaining order rather than its competence in fulﬁlling its core obligation of maintaining order. Community policing’s core characteristic is that communities are involved both in identifying problems of crime and disorder and in solving them, based on the understanding that the police cannot do so alone. For most countries this means an entirely new way of perceiving the police’s role as well as the responsibilities and capabilities of the police. It requires police to actively engage with their communities, to focus on crime prevention rather than detection, to study why the public call on the police and to aim to tackle underlying causes rather than symptoms. However, it also necessitates an organizational transformation, where the command structure and Summary 27 decision-making functions are decentralised (after all, responsiveness to the communities cannot be developed from one central level), and cooperation with other community-safety providers is developed. These fundamental organizational implications are often the cause of problems in practical implementation of this philosophy. In Chapter 3 we have listed success factors that can be used for assessing community policing projects, the prime one being that, when seeking to involve the communities in the maintenance of order and prevention of crime, time is a necessary prerequisite to develop trust. Moreover, developing trust between police and communities requires the full and visible long-term support of both the police leadership as well as politicians. Community policing does not mean the communities taking over policing functions. On the contrary, it requires well-trained professional ofﬁcers fully understanding their role and responsibility and able to gather and select information that should guide decision-making rather than vice versa. Because of its emphasis on responsiveness to communities, community policing is often perceived to be the most ‘human rights friendly’ form of policing. In practice this is not always the case, primarily due to the fact that the concept is often used imprecisely and has somewhat lost its meaning. Practically any policing activity implying any contact with any member of the public has been swept under the umbrella of community policing. Despite this (or thanks to this), it has currently become the leading policing philosophy. Instead of focusing on the rhetoric surrounding community policing, human rights advocates should focus on human rights principles such as responsiveness and accountability to the communities served as well as legality. Authoritarian policing, or even militarised policing, does not have to be the enemy of human rights friendly policing. In fact, in some countries militarised policing (as opposed to community policing) is probably a better safeguard against human rights violations involving corruption and nepotism (where police serve partisan or other interests rather than the public interest), exactly because this type of policing tends to ensure tighter controls on individual ofﬁcers. It should be noted however that authoritarian policing does tend to be more violent in many countries. Law sets the framework within which police carry out their functions and policing priorities are set by (local) security policies. Those representing the people formulate both. As such, police are always closely connected to politics and policing is a political activity in that it seeks to balance various interests in society on behalf of the State. Police are to serve the public interest, rather than some partisan, or other ethnic or religious group interest. Hence, to ensure impartiality and neutrality, and thus non-arbitrary lawful professional decision-making by the police, police leadership must be authorised to decide what resources to spend on what problems with a degree of autonomy – obviously limited by law as well as by established policy. This is known as operational independence. Operational independence of police leadership translates to the rank-and-ﬁle ofﬁcers as discretion (or discretionary powers). While on duty, a police ofﬁcer typically has great discretionary power and can 28 Understanding Policing decide individually on which deviant behaviours to act on or not – obviously limited by such margins as laid down in national law and policy. Though not all countries recognize these principles of operational independence, they are at the very heart of policing. The possession of police powers as well as a certain amount of discretion as to when to use them is vital to effective policing. Police work can never be fully captured in rules and regulations prescribing exactly when to do what. As police operate in a complex arena with many interests, they need to be able to balance these interests and make their own professional judgement, although clearly they should always be held to account for these. Police must earn their ‘right to operational independence’ through their service to the community, lawful and non-arbitrary conduct, and their effectiveness all leading to the public having conﬁdence in the police. Public conﬁdence is to a large extent dependant upon the police being accountable and transparent in what they do and how they do it. Public conﬁdence is a precondition for operational independence – but the reverse is true as well: operational independence can add to people’s conﬁdence in the police. Unfortunately in many countries the reality is very different with police lacking the competence to make professional judgements in difﬁcult situations and unwilling to account for their decisions and actions. Similarly in many countries political elites seek to use the police to secure their own interests and are unable or unwilling to exercise legitimate and effective, but restrained, control over the police. Police powers Police are entrusted with extensive powers that can have a far-reaching effect on people’s lives and which if misused, can result in severe human rights violations. For this reason international standards have set limits on these powers. Human rights oriented policing means policing in compliance with these international standards. It means trying to avoid using force, but being able and willing to use force lawfully and proportionately when strictly necessary and to account for its use afterwards. Police have many different means of using force at their disposal, varying across jurisdictions. The majority of police carry some instruments of restraint such as handcuffs, a truncheon and/or a ﬁrearm. Situations necessitating intentional use of lethal force are a rare occurrence in day-to-day policing; in fact, most police work does not require the use of force at all. When force is required, police should start by employing the least violent method, only gradually adding force when strictly necessary to achieve a lawful policing objective. Use of ﬁrearms should always be reported. Any use of force should always be lawful. Within the legal framework, tactical considerations guide what type and how much force to use in a speciﬁc situation. Police must be trained regularly in the use of force as well as in de-escalation techniques (including communications skills) so as to minimise the risk of using force. This is especially important in situations involving large numbers of people. Summary 29 The policing of public gatherings, such as demonstrations, marches and rallies – also known as public order management – is a particular policing situation. The rights to assemble peacefully and to associate are basic rights which police are obliged to facilitate. The crucial factor in policing demonstrations as well as other public events lies in the preparation. Police should gather intelligence about the participants and their objectives beforehand, and should – where possible – seek to engage with the organizers of the event to identify risks and causes of tensions before they escalate. Preparation should also include such tactical matters as what dress to wear, what communication equipment to bring along and whether deployment of additional police agencies (including specialised units such as dog handlers and mounted police) is appropriate. Use of force is typically at the police’s discretion. Deciding how much force is proportionate is not easy, and may in fact require an independent assessment. Situations in which serious injury and or death have been caused should always be reported to and be reviewed by independent authorities (e.g. an independent police complaints body or judicial authorities). To enable supervisors to ensure that any tendency to excessive or unnecessary use of force, by so-called at risk ofﬁcers, is detected and checked, detailed records on the use of force by individual police ofﬁcers should include such incidents as violent resistance to arrest, injuries in police-public contacts and the use of ﬁrearms. Human rights oriented policing also means carrying out arrests and detentions where necessary. This should always be in accordance with human rights principles, the most important of which are non-arbitrariness, the presumption of innocence, ‘fair trial’ and the absolute prohibition of torture and other cruel, inhuman or degrading treatment. The period just following arrest and detention is when a detainee is most at risk from police abuse. It is for this reason that oversight by independent committees that regularly visit places of detention is considered an important preventive measure. It should be clear that arrest and detention are only lawful when these are carried out within the framework of law; police actions causing additional harm (such as the use of shackles), or that lead to additional punishment (such as forcing a person to eat food that is against his or her religion) are prohibited as the person is still presumed to be innocent and as such may only be subject to those restrictions necessary to the ongoing investigation. In some cases detention is carried out for administrative (e.g. public order) and or preventive reasons. This is known as ‘administrative detention’. In recent years there have been concerns about an increase in legislation that facilitates administrative and preventive detention as a means of addressing terrorism. This is often accompanied by in communicado detention and leads to human rights violations. Police that do not stop or prevent criminal behaviour are neglecting the rights of others, most notably the victims. The detection of crime is a core police 30 Understanding Policing function. Human rights principles relating to criminal investigation include the presumption of innocence, prohibition of torture and other cruel, inhuman or degrading treatment, the right not to testify against oneself, and the right to privacy. Criminal investigation – seeking the truth about a particular crime – may involve a whole range of investigative methods for information- gathering purposes including house searches, wire-tapping and other forms of surveillance. These can be a serious intrusion into people’s private life. In general, police should follow the principle of ‘subsidiarity’, meaning they should try to employ the least intrusive methods possible in the circumstances. There should be a scale of safeguards becoming stricter as intrusiveness increases. Forensics may provide useful and objective information about a crime, making other investigative methods unnecessary. Forensic information is often to be found at the scene of crime, making police skills in handling scenes of crime essential. Decisions about what investigative methods to use are ﬁrst and foremost bound by law, with some methods deemed unlawful. Within the legal framework, tactical decisions are then made about what method to use when. However, police must also know how to use a certain method professionally and lawfully. Both social and technical skills are important ‘investigative instruments’. This is especially the case for suspect interviews despite the fact that there are persistent but erroneous myths, within the police about the possession of a ‘gut instinct’ for carrying out suspect interviews or how to identify someone who is lying. Research has failed to uphold this assumption. Suspect interview requires a professional and intelligent use of information gleaned from a criminal investigation, rendering the use of any undue pressure on the suspect unnecessary. Any intention to use the suspect interview for anything other than seeking information on the crime i.e. for the purpose of punishing a suspect or creating fear, is both unprofessional and more importantly unlawful and as such should be prevented. When aiming to prevent human rights violations and enhance professionalism in the area of criminal investigation, laws and procedures that adhere to international human rights standards, together with adequate training, as well as constant monitoring and evaluation of practical experiences, are fundamental. Enhancing police professionalism Police misconduct, from minor offences to gross human rights violations, should never go unpunished and measures should be taken to prevent their recurrence. Police should be held to account for their actions, but should equally receive adequate ‘preparation’ (including guidelines, training and equipment) to enable them to carry out their actions professionally and in line with human rights standards. In the absence of such ‘preparation’, those responsible for failing to prepare police adequately (such as police trainers, managers and policy makers) could also be held to account. Establishing effective accountability mechanisms, both for individual police ofﬁcers as for the police institution, is crucial. Accountability, a concept commonly referred to by human rights advocates, is a complex matter involving many players. The fact that the concept cannot be translated in many languages means that care should be taken when Summary 31 addressing it. Calling for the implementation of systems of accountability seen in other jurisdictions will not always prove useful and can even be counterproductive in a given country. In order to promote relevant improvements to accountability, human rights advocates need to understand the structure and functioning of the oversight and accountability system in the target country. Any assessment of the accountability structures in the target country requires an initial assessment of what mechanisms are used and secondly how effective they are before recommendations can be made that are relevant to solving problems and preventing their recurrence. Effective accountability should always be a balance of power and inﬂuence between the various players involved. Just as it is unacceptable to vest all powers and discretion entirely with the police, relying entirely on their professional judgment, it is just as unacceptable to vest all powers to control the police within one other single institution or agency, regardless of whether it is the political elite, the Executive or the community or anyone else for that matter. This would simply replace the locus of trust: how can one be sure that the executive organs, or political institutions, parliament, community forums etc, are more reliable (i.e. acting in the public rather than partisan, private or own community interest) than the police? It is exactly for this reason that a system is needed where oversight and control are spread amongst communities and their representatives, executive authorities and legal institutions (including the law) as well as the police itself. Accountability mechanisms should incorporate instruments that ensure compliance with policies, regulations and laws relating to policing. For this purpose, these policies, regulations and laws should be as clear and unambiguous as possible. Instruments of accountability can also include complaints procedures and disciplinary and criminal procedures in cases of alleged misconduct. Accountability should encompass both a priori and a posteriori elements of policing; meaning it should include an assessment of the guidance given to police before an operation as well as how police are monitored and assessed afterwards. All this needs to be supported, in theory and in practice, by police management. Effective chains of command and leadership dedicated to establishing an ethos of respect for human rights are an essential prerequisite for upholding human rights standards. For external accountability mechanisms to be effective at all, internal commitment, most notably from police leadership, is an essential precondition. Human rights compliant policing starts with the selection of the right people to become police ofﬁcers and the exclusion of those that fail to uphold human rights values and attitudes. Some characteristics – most notably high moral standards and values – need to be inherent in individuals; others however, – most notably practical skills and knowledge – can (fairly easily) be taught. Recruitment, selection and training are equally important when seeking to establish a police agency that respects and protects human rights. 32 Understanding Policing Recruiting a representative section of society and from these selecting those with high moral standards and values is a fundamental challenge for police organizations. Representation should be at all levels within the police agency. In order to achieve representation, targets should be set and maintained for the recruitment of ethnic groups, minorities and women, and causes for low recruitment of minorities and women should be evaluated. Indeed, recruitment policies and selection criteria, as well as police culture and symbols, should be assessed continuously on their potential discriminatory effect in order to encourage members of diverse communities to apply. The training of new police recruits should comply with human rights principles – both in theory as well as in practice. Assessment of training programs from a human rights perspective should ensure the following: • All police ofﬁcers should receive basic police training. • Basic training should be long enough for cadets to absorb knowledge, skills and attitudes. • Training should tally with what is expected from future police ofﬁcers. If public responsiveness is considered important it doesn’t make sense to isolate cadets entirely from local communities on compounds, and expose them only to police ofﬁcials. • Training in laws and procedures should ensure that ofﬁcers can relate these to day-to-day police work once they have completed training. • A range of topics should be included in police training. These should include such issues as gender and cultural awareness, non-discrimination, and the role of the police in society. • Police training should continue after basic training. Police ofﬁcers should be regularly re-assessed on their policing skills, especially in the use of force. The importance and potential impact of using recruitment procedures targeting all sectors in society, deﬁning selection criteria reﬂecting respect for human rights principles and offering training that addresses human rights oriented skills, theory and attitudes, should not be underestimated. However, it should not be overestimated either. Both international donors interested in police assistance and human rights advocates tend to overvalue the importance as well as the effectiveness of recruitment, selection and especially training. At the same time there is a tendency to ignore institutional causes for human rights violations. Challenging and dealing with these institutional problems is far more difﬁcult and requires long-term commitment, whereas training can seem like a quick-ﬁx solution that is easily implemented. For training to be truly effective, it has to be reinforced in practice. When training cadets in the lawful use of police powers, the prerequisite must be the existence of operational procedures that are in line with human rights standards. This however is not a training issue. In situations in which police are violating human rights one should question whether training is the most effective starting point for change. And if so, one should consider starting with training police leadership, rather than rank and ﬁle ofﬁcers. Answering this question accurately obviously requires a careful analysis of the respective situation. Summary 33 When seeking to enhance police professionalism NGOs can play a distinct role. Exactly because they are not involved in State orderings, and often understand the community’s concerns and worries, NGOs can be important partners for police seeking to improve their responsiveness and overall human rights compliance. We have mentioned before that the relationship between human rights NGOs and the police has for long been characterized by antagonism rather than trust. However, when police are open to human rights based reform, human rights NGOs and police can seek to formulate a common agenda through ‘engagement’. Engagement between police and NGOs has often been characterised by involvement of NGOs in police training programs. Engagement has created new dilemmas for NGOs, most notably the dilemma of how to work together while keeping enough distance to allow for criticism. Based on experiences within Amnesty International, the following lessons have been drawn: • Any engagement activity should always be based on information: a proper contextual analysis should always be the starting point on the basis of which a strategy and a project plan deﬁning objectives and activities can be developed. This assessment should include an analysis of what other NGOs are doing in this ﬁeld. • Establishing a relationship that is friendly but critical requires time. • Transparency towards membership, as well as other NGOs, is essential in preventing resistance and opposition. • Commitment from top police leadership should be clear so as to institutionalise contacts. In many countries this can only be achieved when there is clear commitment from the Ministry of Interior and/or Justice. • Understanding policing is a precondition. Work on policing issues should always be based on a solid analysis, involving a contextual analysis as well as a self-analysis, leading to the formulation of the main concerns based on which an intervention strategy can be developed. Undertaking such an analysis – one that goes further than a direct focus on the human rights violations – may not always be easy for human rights advocates who are eager to intervene. Indeed, the starting point for most human rights advocates will lie in things that go wrong rather than right. This Resource Book suggests that having decided to initiate work on policing issues – which in most situations will be based on human rights concerns – it is vital to ‘take a step back’ and start with an analysis focusing on what the police are required to do (as set out in national legislation and other standards and regulations governing the police), in what judicial and societal context they operate, and what their internal organization looks like. Based on this analysis, as well as a realistic estimate of one’s own resources, human rights advocates can develop a strategy for research, campaigning and possible engagement. This Resource Book aims to help in making these assessments, by providing human rights activists with a tool for carrying out an analysis and general background information on the police institution and policing. 34 Understanding Policing Conclusions Policing and human rights are two related subjects. In countries where human rights violations occur police are almost invariably involved in one way or another. Human rights violations involving police include the abuse of police powers (unlawful use of force, illegal arrest and detention) on the one hand and a lack of due diligence in carrying out police functions on the other. Police can be corrupted, unmotivated, uninterested, untrained etc. all leading to a police agency that is unable and/or unwilling to achieve its lawful objectives with due diligence. Yet even in countries where police receive extensive training, where advanced recruitment and selection methods have been developed and where there are abundant resources, human rights violations still occur as is documented in many of Amnesty International’s country reports. Why is this and how can human rights advocates develop effective and relevant strategies for intervention and engagement with police? To start with the ﬁrst question; how do human rights violations occur and how do they persist? The answer will differ from country to country because of the different realities. It is for this reason that any attempt to intervene in relation to police conduct should always be based on a contextual analysis and assessment. Too often international consultants and trainers, usually employed by international donors, simply aim to export the system they know from ‘back home’ when addressing problems with policing. It should always be clearly understood that police are part of the State system in all its aspects. The country’s history, culture, economy etc, are reﬂected in its legislation and policies, and in its operational practice as well as in the language used. Human rights compliant policing requires a human rights compliant environment in which to operate. Seeking to intervene in policing, while ignoring this simple fact, will rarely if ever be effective. With this in mind we would like to make four speciﬁc observations about human rights interventions that seek to improve policing and how these can be made more effective. First: Too often the police are analysed in isolation as if it is possible to improve the human rights situation by changing just this one aspect of the security and justice system while leaving the other aspects untouched. Even though this point is often recognised in theory, it is hardly ever acted on in practical recommendations. Indeed, both consultants and international donors tend to focus on just one aspect of the security and justice system instead of targeting the system in its totality, thus ignoring how the different institutions interrelate. In practice, addressing problems in policing in isolation is rarely sufﬁcient to improve policing as a whole. Any human rights strategy that seeks to be effective should always start with an assessment of the broader security and justice system as such and subsequently analyse the police’s role in it. This should always include an analysis of both the legal and policy framework upon Conclusions 35 which the police and the other security and justice agencies operate and how clearly they deﬁne and limit the various objectives and operational boundaries of these agencies. It should also include an assessment of their administrative, and/or political, authorities. Any kind of police reform requires commitment from police authorities; if not active commitment then at least permission to move on. Secondly: Human rights interventions in relation to policing often focus on police operations in which human rights violations most commonly occur. Police reform programs often focus on implementing new philosophies and/or methodologies, usually involving some form of ‘community based policing’, and/or include the deployment of new equipment and weaponry, and very often the dissemination of new practices through training.1 However, paradoxically, such interventions tend to have little effect, as focusing on police operations tends to ignore the institutional causes of human rights violations and their persistence. Rather, it usually leads to interventions focusing on rank and ﬁle ofﬁcers and how they carry out policing while failing to address the police leadership and police authorities. As a result such reform programs and related interventions tend to have little effect on respect for human rights in daily practice. Thirdly: Interventions that do seek to deal with the institutional context of policing tend to underline the importance of accountability. Human rights advocates and international donors tend to emphasize the importance of improving accountability without explaining what it is exactly. Accountability is easily misunderstood and is difﬁcult (if not impossible) to translate in many languages. Human rights advocates tend to underline the importance of external accountability and oversight bodies, sometimes at the expense of understanding that the effectiveness of such external mechanisms is dependent upon the internal commitment of the police, most notably police leadership. External accountability must always be accompanied by internal commitment to accountability, reﬂected in internal accountability mechanisms. For police these internal mechanisms – those that affect their promotion and demotion opportunities, their salaries and other beneﬁts – may have more impact, as they may more directly affect their (working) lives. Human rights violations can often persist because there is no effective internal correction mechanism and a police culture characterized by a ‘wall of silence’ that 1 ) Note that in recent times prevents human rights abuses from being acknowledged and investigated. police reform programs have At the same time however, focusing only on internal systems while ignoring increasingly focused on how external mechanisms runs the risk of further reinforcing internal norms (rather States can better defend than challenging these), including those that disrespect human rights. themselves against ‘terrorism’, facilitating the adoption of legislation broadening The answer is that there needs to be a balanced system of accountability police powers and functions involving both external and internal parties taking responsibility for effective – and sometimes thereby and human rights oriented policing. Ignoring this risks rendering systems undermining the original of accountability ineffective. External accountability mechanisms are not objectives of the reform programs to improve police- the answer per se and can themselves become the instrument of particular community relations. interests, thereby necessitating oversight of their operations, leading to a spiral 36 Understanding Policing of accountability structures. Human rights advocates need to acknowledge the important role that internal accountability mechanisms can play and take steps to assess these. There has been a traditional reluctance amongst human rights advocates including Amnesty International to address these internal mechanisms. However, failing to address them risks developing strategies to tackle accountability that ignore some of the root causes of problems. Fourthly: Human rights interventions almost invariably include training. Police are trained in new operational methodologies, in legal issues, in human rights, in dealing with minorities etc. Over and over again recommendations are formulated stressing the importance of improving training, apparently in the belief that training can solve all ills. It can’t, for more than one reason. First of all, and most importantly, because many human rights problems do not stem from inadequate training alone but rather from the absence of adequate standards and procedures on which to base the training. This is the responsibility not of the training institutes but of those responsible for developing regulations and policies and translating these into standard operational procedures – in most countries the Ministry of Interior and/or Justice. Another reason why training alone can never be effective is that training tends to target the rank-and-ﬁle ofﬁcers rather than the police leadership. Training rarely starts with police leadership, which is odd given that it is the leadership that is responsible for ensuring that training is put into practice. The ability of police leadership to shape an ethos of respect for human rights, and its effect on the overall police culture, should never be underestimated. Recruitment, selection and training are undoubtedly very important tools, but the extent to which police retain the information and values they have learnt during training in carrying out their duties is to a great extent shaped by the process of socialization which that person undergoes following training. What new recruits see and experience while doing their job shapes their thinking and behaviour. Training that is not embedded in a broader framework; that receives no follow-up in practice; and receives no visible support by police management, is bound to be ineffective. So why is it that training is so often referred to as the solution to improving respect for human rights? The cynical answer is that it is probably because addressing training does not require a shake up of fundamental policing policies, doesn’t touch upon daily realities, is not politically risky (both for donors as well as recipients) and doesn’t cost too much, while it does convey an image of commitment to human rights (which is why so often the numbers of police undergoing training is highlighted). Addressing policing and seeking to inﬂuence police behaviour requires a thorough understanding of the police and the context in which it operates. To understand the police and all the complexities involved, an understanding of policing concepts and relevant standards can help to reach a richer analysis in target countries and develop an effective and comprehensive research, campaigning and/or engagement strategy. Such analysis may very well result in the conclusion that in order to change police behaviour, legislative changes, or Conclusions 37 changes to the prosecution services, or other elements affecting the police, may in fact be more fruitful. © REUTERS / Australian Defence Force / Gary Ramage WB Part I. Introduction Human Rights and the Police 39 40 Understanding Policing © AFP PHOTO / Tim Sloan Mindful that the nature of the functions of law enforcement in the defence of public order and the manner in which those functions are exercised have a direct impact on the quality of life of individuals as well as society as a whole General Assembly Resolution 34/169 adopting the UN Code of Conduct for Law Enforcement Ofﬁcials,17 Dec. 1979 Human Rights and the Police 41 1. Human Rights and the Police 1.1. Introduction Human rights advocates as well as academics often argue that ‘good policing’ means policing in line with international human rights standards. Although this is no doubt true, it must be understood that international human rights standards offer only limited guidance for day-to-day police work. In fact, good police work can never be fully captured in rules and regulations, however numerous and detailed they might be. The necessary discretion required by police to carry out their functions presents problems for those human rights advocates preferring to have clear norms against which police behaviour can be measured. Many police ﬁnd the reasoning of human rights advocates to be naïve at best, and theoretical to say the least, reﬂecting a lack of understanding of their reality and placing an unrealistic burden on police work. Human rights advocates on the other hand say that police use this as an excuse to sidestep criticism. Police and human rights are two domains that reﬂect differing perspectives on rights and security. Though the relations between the two ﬁelds may seem obvious, differences in fundamental frames of reference between the two may lead to major miscommunications. In this Chapter we will take a closer look at how the two domains relate to one another. We start by exploring the police as a professional group and policing as an activity. Though police are often referred to as law enforcers, we prefer to use the term police, since policing encompasses more than mere law enforcement tasks. In Section 1.3. we look at the speciﬁc ﬁeld of policing and human rights and explore developments that have taken place in this domain over the past decades. These developments have inﬂuenced those working in both ﬁelds, and in Section 1.4. we look at how the developments have impacted on the relationship between representatives of both groups. We close with a brief summary. 1.2. ‘Police’ or ‘law enforcer’? The commentary to article 1 of the UN Code of Conduct for Law Enforcement Ofﬁcials (UN Code of Conduct) provides the following deﬁnition of law enforcement ofﬁcials: "The term ‘Law enforcement ofﬁcials’ includes all ofﬁcers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest and detention. In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the deﬁnition of law enforcement ofﬁcials shall be regarded as including ofﬁcers of such services.” The UN deﬁnition implies that all ofﬁcials, whether called Security Forces, Gendarmerie or Military Police, having the power to arrest and detain, are to be 42 Understanding Policing considered as law enforcement ofﬁcials, and thus should uphold the norms set out in the UN Code of Conduct. This principle is also reﬂected in the ‘Guidelines for the effective implementation of the code of conduct for law enforcement ofﬁcials’.1 It is notable that the deﬁnition in the UN Code of Conduct does not explicitly refer to the powers police have to use force against members of the public (in times of peace). The power to use force is very often seen as a deﬁning police characteristic: the police may legally use force to maintain order, whereas other members of the public may in most circumstances only use force in self- defence. This is often referred to as the police having a ‘monopoly on the use of force’ in times of peace. It is exactly this monopoly on the use of force that gives the police its particular, and sensitive, position within the State system, thereby necessitating adequate control mechanisms to prevent abuse. The speciﬁc power of police to use force is reﬂected in the European Code of Police Ethics which (referring to police as ‘traditional police’, trusting – perhaps rightly so – that everyone understands what that is) states that the “hard- core characteristic (…) entrusted to all existing public police bodies in Europe [is] the power to use force to maintain law and order in civil society.”2 Unlike the UN Code of Conduct, speciﬁc types of police formed for purposes other than maintaining law and order in civil society – such as military police, police involved in prison systems and secret security services as well as private security companies – are explicitly excluded from the European Code.3 In literature the terms ‘police’ and ‘law enforcement ofﬁcial’ (LEO, plural LEOs) are used interchangeably. In international human rights standards the latter term is most commonly used, thereby probably leading to its use by the majority of human rights advocates. Police themselves however tend to prefer the term ‘police’ as policing is not the same as law enforcement. Although police are always law enforcement ofﬁcials, most countries also have non- police agencies whose ofﬁcials enforce the law, for example border guards or customs ofﬁcials. Even more important is the fact that the police function is 1 ) Resolution 1989/61 adopted by the Economic and Social often so much broader than mere law enforcement. It is generally accepted Council, 24 May 1989 and that the functions of police encompass: 4 endorsed by the General Assembly in its Resolution • Prevention and detection of crime 44/162 of 16 December 1989. 2 ) The European Code of • Maintenance of public order Police Ethics. Commentary to • Provision of assistance to the public the deﬁnition of the scope of the Code. The term policing is used with many different meanings in mind; most 3 ) Ibid. notably it is referred to as the process of ‘ensuring compliance with the law’ 4 ) See for example: Rover, C. de, 1998, To serve or to in all its aspects. It should be apparent that ensuring such compliance can protect; Crawshaw, R., e.a., never be achieved by the police alone. Policing may indeed encompass more 1998, Human rights and agencies and entities than just the police and is sometimes even taken as a policing. Standards for good social process involving civil society at large rather than a professional duty behaviour and a strategy for change; European Code of carried out by a State agency. However, such an interpretation of the concept Police Ethics. of ‘policing’ may create unnecessary confusion, underlined by the fact that Human Rights and the Police 43 the term is not always easy to translate in other languages. We will therefore use a simple deﬁnition and deﬁne policing as ‘what the police do to ensure compliance with the law’. The history of ‘police’ as a concept The concept of ‘police’ has a long history. Its characteristic feature is that the concept has been narrowed down more and more. ‘Police’, ‘politics’ and ‘policy’ are clearly related words. The words derive from Latin ‘politia’, meaning ‘civil administration’ or ‘the State’, stemming from the Greek ‘polis’ (city) and ‘politikè’ (that which belongs to the city state, to civil society).5 Originally the word ‘police’ encompassed the entire responsibility of the State, including religious functions (where these were still the responsibility of the State). Later the concept was used only for secular functions of the State and again later only for certain aspects of these State functions.6 Only in the 19th Century is the concept restricted to those functions of the State that encompass protection against threat. Police agencies (as opposed to the police function) as we know today, are relatively new. In fact the ﬁrst civil, public police, was the Metropolitan Police of London, formed by Sir Robert Peel in 1829. Other countries followed, with most developed democracies having police for some 100-150 years. In many formerly colonized countries the police were ‘implanted’ by colonial rule, primarily serving the interests of the colonial power at the expense of the local people. Police are a State institution, operating under national authority and within national sovereignty. For many they are the most visible representatives of the State. They can operate in a centralised or decentralised system, organised at a federal, state or provincial level, divided into a judicial or a uniformed agency. Indeed, there are as many different police agencies as there are countries. Police are always contingent upon the State and its inhabitants: they will always reﬂect the nation (or region or locality) in its political 5 ) The word ﬁrst appeared culture, history, people, and economy. This simple notion can have enormous c.1530 in the English language, consequences. Political realities shape policing: if the State system has not as a synonym for ‘policy’, that adopted democratic values the police are not likely to defend such values. is civil administration. Up to Police themselves invariably come from the society they police and will adopt the mid-19th century, ‘police’ in English meant both ‘civil and express similar attitudes (which must not be confused with police always administration’ and, borrowed being responsive to a community’s needs). If societal attitudes are hostile to from French, ‘administration certain members of the public the police are likely to share these attitudes. If of public order’. Online the country is confronted with high levels of corruption, alcohol abuse, physical Etymological Dictionary, at www.etymonline.com. violence etc, it is to be expected that these problems will be reﬂected within 6 ) See for example; Cachet, the police agencies and that therefore tackling them will present a major A., 1990, Politie en sociale challenge and may very well require an entry point other than the police. controle. Indeed: “It must be realized that the professional police standards (rule of 7 ) Das, Dilip K., 1997, law, accountability, transparency of decision-making etc) are to a large extent “Challenges of policing democracies: a world universal. However, the police function within cultural limits and constraints perspective.” p. 628. as well as economic realities.”7 General statements about the police, as given 44 Understanding Policing in this Resource Book, should always be set against the reality of the target country – obviously without lowering the standards against which the police are assessed. Different perspectives on the role of the State and its ofﬁcials Broadly speaking there are two perspectives on the role of the State vis-à-vis its dependants.8 One (Napoleonic) is based on the assumption of the State as strong and authoritarian in its ability to provide security for the people in its territory; the State is thought to best represent and defend the public interest. State ofﬁcials are to neutrally and professionally carry out State missives irrespective of who the State agent is. From this perspective it is hard to “think of security outside the box of the all-powerful nation-state.”9 The most notable representation of this perspective is France, but the other continental countries of Europe as well as most South American countries, tend to share this perspective. The other (Anglo-Saxon) perspective is critical (even suspicious) of public management of security problems. The role of the State in providing security is considered equal to that of other non-State actors. State ofﬁcials are to engage with their communities, and should be representative of them, as a means of ensuring that they work in the community’s interest. This perspective is seen in the United Kingdom and the USA, as well as in many other countries that have been inﬂuenced by them. The perspective in use is strongly based on a particular country’s historical context and is reﬂected in the judicial systems in use (inquisitorial or rather accusatorial, see Chapter 2). How people perceive the role of the State strongly inﬂuences how they perceive the role of the police. In the one system police are primarily seen as the strong arm of the State, whereas in the second tradition police are primarily seen as service-providers to the communities. Both perspectives are legitimate – in theory they are equally able to be consistent with human rights principles or to violate them. However, the human rights domain is heavily inﬂuenced by the Anglo-Saxon context with its preference for a service- oriented decentralized police, that is responsive to and representative of the people they serve. It is true that this may indeed be very helpful when seeking to establish human rights compliant policing – though it is certainly not a precondition. The more formal State, operating at a certain distance to the people also has the potential to comply with human rights principles. Moreover, those introducing concepts and methodologies from one system to the other may encounter difﬁculties. 8 ) Ferret, J., 2004, “The State, It is important to be aware of the distinction between perspectives on the policing and old continental role of the state, as well as to reﬂect on one’s own position in this regard. Europe: managing the local/ national tension.” Most major international human rights organizations are based in Anglo-Saxon 9 ) Ibid. p.50. contexts and seem to have adopted its outlook on the State accordingly. Human Rights and the Police 45 This Resource Book strives to take a neutral position on this issue, while adhering to international human rights standards. Wherever relevant we will reﬂect on the different systems and the consequences for policing. As has been shown above, policing encompasses more than mere law enforcement. This Resource Book will therefore use the word ‘police’ rather than ‘law enforcer’. The term ‘law enforcement ofﬁcial’ will only be used when referring to the UN Code of Conduct. This Resource Book will not address additional police functions such as those relating to immigration, asylum and refugee policies and practices, border control, correction and detention (other than police detention) and policing in war situations and refugee camps. 1.3. Police and human rights Human rights standards were initially developed as a means of placing controls on the powerful State and its apparatus of power, and protecting the individual against State abuse of power. The International Covenant on Civil and Political Rights (ICCPR), and other treaties within the human rights framework, all reﬂect this principle. Those international human rights standards relating to police focus for that reason on police powers. International law sets standards as to how police powers are to be used legitimately. These international human rights standards tend to be perceived by police ofﬁcers as limiting their room to act. This is not totally coincidental, as indeed this is exactly what human rights advocates tend to stress. Policing tends to be associated with the negative functions of the State – police can use their powers to legitimately restrict people’s rights and liberties. For a large part the legitimacy of police use of their powers can only to be assessed after the event as police have (and require) a degree of discretion as to when and how to act or not to act. Obviously this requires a functioning system of accountability. Indeed, issues of accountability are a major concern for human rights advocates, and enhancing accountability is often referred to as an important solution for human rights problems. This having been said, the attention of the human rights community has gradually shifted to encompass the positive obligations of the State and hence to the police in its other roles: as human rights protectors and as one of the key players in the overall maintenance of stability (what police call order), supporting the creation of a situation in which people can enjoy all rights (including civil, political economic, social and cultural rights). Indeed, the police for long have been under the human rights spotlight uni-dimensionally and yet negatively, whereas in more recent times other dimensions have been added including those that acknowledge a more positive role for police, opening up the possibility for reﬂecting on areas of mutual interests for both human rights advocates and police ofﬁcials. 46 Understanding Policing For decades human rights were considered from the perspective of a powerful, abusive, State against the weak individual: the public needing protection against the State which was actively violating their rights. Consistent with this perspective, human rights were mainly regarded as something taking place in the public sphere. However, in recent years the emphasis has shifted to highlight the fact that human rights are not restricted to acts or omissions of State ofﬁcials against the public, but equally encompass inter-public acts as well (acts of non-state actors against members of the public, and of members of the public against one another) and to highlight the role of the State in protecting those in the private sphere. As the Committee on the Elimination of Discrimination Against Women (CEDAW) stated in 1992 “States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.”10 The police are the primary institution responsible for the maintenance of public order and the rule of law. They are also one of the key State agencies responsible for the prevention and investigation of criminal acts including those that can be qualiﬁed as human rights abuses or violations. As such, police are to carry out their functions with due diligence. We will return to the issue of due diligence in Chapter 2. At the same time however, the notion of the powerful State has gradually been eroded: citizens have claimed increased rights and States are not as powerful in reality. Police often seek to highlight this point. According to their reasoning, the imbalance of power has shifted from the State to sections of society such as members of organized crime networks as well as terrorist groups who are aware of their rights and seek to ‘abuse’ the system to their beneﬁt (such as delaying trials, ﬁling complaints, appealing to higher courts etc). From this viewpoint, human rights are seen as an impediment to effective policing. Moreover, police feel that such sections of society are given more freedom to act than police themselves are. The perception is that a ‘Catch 22’ situation has evolved in which the human rights system, developed to protect the ‘weak’ individual, is actually weakening the State, resulting in a perceived dichotomy with security on the one side and human rights on the other. There are other relevant relationships between policing and human rights. Often overlooked but worth studying is the resolution adopting the UN Code of Conduct, which states: “Every law enforcement agency should be representative of, and responsive and accountable to, the community as a whole.”11 This implies that police ought to engage with those they are to serve – members of the public – so as to establish their objectives in a joint process together with those in whose interests they are to act. This is the only way to prevent police becoming technocratic maintainers of public order, or worse. Indeed a preoccupation with ‘professional policing’ among police reformers 10 ) CEDAW, General Comment tends to ignore the importance of police work being ‘value-driven’, one of No.19, para 9. these values being empathy with and responsiveness to those the police are 11 ) General Assembly serving. Professionalism, although essential, is not sufﬁcient to ensure human Resolution 34/169 adopting the UN Code of Conduct, 17 rights compliant policing. At the same time responsive policing is no guarantee Dec. 1979. of human rights compliant policing either. Public tolerance of police violence Human Rights and the Police 47 12 ) As is also stated in the tends to increase in situations of high crime, to the extent that police violence ‘Guidelines for the effective can be praised by sections of the public as being ‘tough on crime’ (as currently implementation of the UN Code of Conduct for law seen in many countries including Brazil, South Africa and Colombia). This enforcement ofﬁcials’: “All presents police leadership and their political masters with complex issues that law enforcement ofﬁcials shall must be solved in joint cooperation with civil society. be adequately remunerated and shall be provided with appropriate working Police are to ensure that other people can enjoy their rights. However, the conditions”. rights of police ofﬁcers themselves are often neglected, both by human rights 13 ) Article 11(2) of the advocates as well as by the police. Police leaders sometimes tell police they European Convention and are not entitled to civilian’s rights because they are not civilians. This is clearly Article 16(3) of the American Convention reﬂect similar not true. Police are entitled to the same rights as everyone else, as provided for principles. in the International Covenant on Economic, Social and Cultural Rights (ICESaCR) and ICCPR, including leisure time, fair pay, fair working hours, safe working conditions, equal promotion opportunities.12 The only exception is given in Article 22(2) of the ICCPR that States can restrict the rights of those working within the armed forces or the police to freedom of assembly including the right to form and join trade unions (in fact, this is the only explicit mention of police in the entire body of international human rights treaties).13 Unfortunately in many countries the reality for police is extremely hard. Police often work excessively long hours, are underpaid, carry out dangerous work with little if any protection, are ill-prepared (both in terms of training and equipment) to perform tasks, have little social status and receive criticism from all sides. Indeed, many working in the ﬁeld of police and human rights ask how the police can be expected to protect human rights when their own rights are not protected. Any effort undertaken to improve police respect for human rights should include making a fair analysis of their own situation. Where necessary, it could include advocating protection of police rights. This may be a difﬁcult issue for human rights advocates, yet it is a logical consequence of their work. Moreover, any effort to improve police professionalism should address police management and elicit their full and visible commitment. Police ofﬁcers have rights too! The European Platform for Police and Human Rights, in which both police and NGOs (including Amnesty International) participate, and that works under the auspices of the Council of Europe, has published a leaﬂet called ‘Police ofﬁcers have rights too!’ The leaﬂet discusses the following rights: • Rights on duty: The right to life • Rights in the workplace: The right to privacy The right to freedom of expression and association The right to freedom of discrimination • Rights to proper working conditions • Rights in disciplinary or criminal proceedings 48 Understanding Policing 1.4. Police and human rights advocacy As we have seen in the previous Section ‘Police and Human Rights’ is a dynamic ﬁeld that has seen major developments during the past decades. This has affected the work of human rights advocacy, and continues to do so.14 Those working in the ﬁeld of human rights advocacy who wish to address police need to consider these developments and challenges to their work which include: • Human rights advocates have tended to ignore the police’s responsibility in actively protecting people’s rights through preventing crime (including violent crime) and maintaining public order. They have mainly been concerned with the negative aspects of policing, thereby making it difﬁcult to engage with police. The resulting distance between police and human rights advocates has limited the development of a common language and understanding. Acknowledging the positive obligations on the State, and the police, may in fact present the possibility of a ‘shared agenda’ or ‘common ground’ for police and human rights advocates. • Human rights advocates have tended to stress the police’s role in relation to civil and political rights while ignoring its role in the maintenance of stability and order to ensure the realisation of people’s enjoyment of their economic, social and cultural rights.15 • This has resulted in the paradoxical situation that human rights advocates have tended to pay little attention to general crime that may have been a more serious threat to people’s full enjoyment of their rights, than police behaviour was. People’s sense of insecurity has become a major issue in the media in the last decade. Crime is a serious threat to the lives of people all over the world. Fear of crime, even when subjective, threatens people’s sense of security and safety. Human rights organizations have tended to underestimate how crime affects people’s lives – and sometimes misunderstand people’s perception that human rights can render criminal institutions less 14 ) Neild, R., 2002, “The new effective. The effect of this has been that in some countries victims face of impunity.” groups are opposing human rights groups rather than seeking co- operation16 and that ‘security’ and ‘human rights’ are sometimes 15 ) For several decades, AI focused on civil and political rights, but has broadened its percieved to be opposites rather than two sides of the same coin.17 mission to include economic, Indeed, in some countries governments and police have been succesful social and cultural rights. See, in convincing the public that tough policing (often meaning more police 2005, Human rights for human powers with lesser safeguards for their lawful use) is necessary to dignity. 16 ) Cavallaro, J.L., 2003, Crime, provide a feeling of security.18 public order and human rights. 17 ) Ibid. See also: Varenik, • Linked to this is the fact that traditionally human rights advocates R., 2003/04, Exploring – including those working within Amnesty International – have roads to police reform: six recommendations. focused on State violence against political opponents. However, 18 ) Cavallaro, J.L., 2003, Crime, “the new victims of police abuse are common criminals – both public order and human rights. perpetrators and victims of crime – in contrast to the past when the Human Rights and the Police 49 people whom human rights organizations defended were victims of state repression. It is clear that the idea of defending the new ‘guilty victims’ is increasingly discomforting to [human rights organizations]. (…) They face denunciation by politicians for coddling criminals and must contend with the argument that tough-on-crime policies entail a necessary trade-off in the abrogation of some rights. In transitional societies, where rights are fragile in both public consciousness and political discourse, this hard-line appeal threatens a loss of public support for hard-won rights values.”19 Human rights advocates who approach the police to establish some kind of engagement sometimes encounter a lack of understanding on the side of police. Rather than assuming that this reﬂects a lack of commitment, it should be understood that in some situations this misunderstanding by police ofﬁcers – of human rights in general and how it relates to police work – is real and is often made worse by the fact that human rights semantics have been abused by (former) authorities. For example, police ofﬁcers sometimes believe that arresting someone is a violation of human rights, making it difﬁcult for them to understand how the two (policing and human rights) can go together. Human rights advocates should make it very clear what human rights are and what negative restrictions and positive obligations these place on police work. Human rights compliance ﬁrst of all requires there to be a lawful basis for police action, that the action itself should conform to the law, and that the law should conform human rights standards. Moreover, human rights compliance requires the police to investigate and prevent incidents in which the rights and freedoms of people are curtailed. 1.5. Summary Policing encompasses more than mere law enforcement. This Resource Book will therefore use the word ‘police’ rather than ‘law enforcer’. Policing encompasses prevention and detection of crime, the maintenance of public order and provision of assistance to the public. These three functions together are believed to ensure security for those living in the State’s territory. In order to ensure security, police can legitimately restrict peoples’ rights, referred to as the negative function of the State; however police also have a positive obligation to help create an environment in which people feel and are free and secure. Police themselves are also entitled to this positive obligation of the State; they themselves are entitled to the same rights as anyone else, including economic, social and cultural rights. Police ofﬁcers tend to have a different perspective from that of most human rights advocates. They sometimes use different language when speaking of the same issue and will reach different conclusions about cause and effect. Sometimes this is the obvious result of the different roles they have in society; sometimes they may be the result of stereotypic assumptions. 19 ) Neild, R., 2002, “The new face of impunity.” © REUTERS / Reinhard Krause Human Rights and the Police 51 Part II. Achieving the Objectives of Law and Order 52 Understanding Policing Achieving the Objectives of Law and Order: Introduction To many the most important police function, and the one they associate most with policing, is the maintenance of public order. Indeed, all other police functions derive from this. The police are not the only agency responsible for the maintenance of order, nor are they the only agency operating in this ﬁeld. There is a conglomerate of partners involved, all with distinct roles and responsibilities and distinct powers. In many cases it would be inappropriate, but also ineffective, to approach only one agency with concerns about the lack of law and order. It is therefore essential to understand what other players are involved in the maintenance of order and how the police relate to (and depend on) these. It is also essential to understand how the police relate to the State and its citizens. Are police the coercive arm of the State or are they an instrument to render service to the community? This debate is often reﬂected in the use of the different concepts of police as a ‘force’ or a ‘service’ respectively. The perspective taken strongly affects how police approach the public as well as how the public approaches the police. Human rights advocates tend to perceive the police as a ‘force’ and strive for the police to become a ‘service’; a police that is responsive and directly accountable towards the community. Indeed ‘from a force to a service’ is a slogan that is often used in relation to human rights work with the police. Obviously, when prioritising service to the State, police risk becoming an instrument of force of the powerful elite. However, when prioritising service to communities, police risk serving the needs of some at the cost of others. It is for this reason that police need some freedom to make their own choices based on their professionalism (obviously bound by law and established policy). Indeed, in seeking to achieve policing compliant with human rights, the question should not be whether they are a force or a service, but rather how these two aspects of policing are balanced. Police are the strong arm of the State, operating in the public interest. Put the other way around: The police are a service that may lawfully use force in order to achieve their lawful objectives. How force and service are balanced in practice is closely related to the role police have in society. Ignoring either side will inevitably result in less effective policing. As such it is not appropriate to talk about ‘police forces’ or ‘police services’. We suggest rather using the neutral concept of a ‘police agency’. Part II of this Resource Book explores some of these issues. It looks at what it is the police are required to do and in what context. Chapter 2 looks at the concepts of ‘order’ and its opposite ‘disorder’. Chapter 3 looks at how the police can give form to their responsibility to maintain order; by adopting Achieving the Objectives of Law and Order: Introduction 53 different methodologies to achieve their goals. Chapter 4 looks at the interplay between the State, its citizens and the police and explores the necessity, but also the risks, of operational independence. We believe that this background information about what the police should do and the context in which they operate, is crucial for those wishing to make an adequate assessment of police in a given country and to develop an effective intervention strategy. 54 Understanding Policing © ANP / Kevin O’Hara Everyone has the right to life, liberty and security of person Article 3, Universal Declaration on Human Rights Everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realised Article 28, Universal Declaration on Human Rights State Responsibility for Law and Order 55 2. State Responsibility for Law and Order 2.1. Introduction Some level of tranquillity in society is a necessary precondition for ensuring that people prosper. Indeed, the link between security and the full enjoyment of both civil and political, as well as economic, social and cultural rights is increasingly acknowledged, as reﬂected in the fact that international development initiatives are being linked to issues of security.1 For people to be able to live together peacefully, norms of behaviour within and between groups emerge, which are sustained naturally through socialization and informal discipline, or they may be externally imposed through formal regulations. Ultimately, the State is responsible for ensuring a minimum level of order and the police are one of several State entities tasked with giving effect to this obligation. The resolution adopting the UN Code of Conduct for Law Enforcement Ofﬁcials refers to “defence of public order” as “the nature of the functions of law enforcement.”2 An important precondition for adequately evaluating police practice is a full understanding of the background against which police operate – including all aspects of the broader security and criminal justice systems. We start in Section 2.2 of this Chapter by exploring the concept of ‘order’ and how it relates to the ‘rule of law’. It is the State’s ultimate responsibility to maintain order, which we discuss in Section 2.3. Section 2.4. looks at how States realise their responsibility to maintain order in practice through the establishment of security systems involving agencies that sit alongside a criminal justice system. It addresses how these various entities – including non- State actors – interrelate, developing the institutional context in which police operate. Order can be deﬁned as the absence of disorder; Section 2.5. looks at disorder in different manifestations. Disorder may require States to establish 1 ) This is clearly endorsed by many funders of police a state of emergency, derogating from human rights standards, and frequently reform and police assistance impacting on police activities, an issue discussed in Section 2.6. We close with programs. See for example a brief summary. Stone, C. and J. Miller, M. Thornton and J. Trone, 2005, Supporting security, justice and development: lessons 2.2. Order for a new era. The paper draws together lessons from 2.2.1. The right to security and the duty to maintain order experiences of UK funded policing and justice programs The ‘right to security’, ‘secure’ meaning ‘untroubled by danger or fear; safe, in seven countries. protected’; ‘security’ meaning ‘a secure feeling’3 is a basic right guaranteed in 2 ) General Assembly Article 3 of the Universal Declaration on Human Rights (UDHR). It is a difﬁcult Resolution 34/169 adopting right to guarantee, as there are so many factors involved in providing security. the UN Code of Conduct, 17 The individual may require different factors to ensure his or her security from Dec. 1979. 3 ) The Concise Oxford those required by the collective (certainly considering that achieving security Dictionary, 1990. may involve subjective feelings rather than objective criteria). High levels of 56 Understanding Policing 4 ) Rights to liberty of crime, whether real or perceived, may result in people feeling unsafe and movement, freedom of insecure and may facilitate the acceptance of a tougher anti-crime regime thought, opinion, assembly and potentially jeopardizing the rights of others. association respectively. 5 ) ICHRP, 1999, Taking duties seriously: Individual duties in The right to security is strongly connected to the ‘entitlement to order’, as international human rights law- stated in Article 28 of the UDHR, implying that order is necessary for people to A commentary. realise their rights and freedoms and fulﬁl their aspirations. Article 28 is taken 6 ) The Concise Oxford Dictionary, 1990. further in the preambles of both the ICCPR and the ICESCR: “(…) the ideal of 7 ) In this view laws tend to free human beings enjoying civil and political freedom and freedom from fear criminalise those acts that and want can only be achieved if conditions are created whereby everyone are of most concern to the may enjoy his civil and political rights, as well as his economic, social and (middle-class) electorate, cultural rights.” One of these conditions is an environment that is safe and typically acts such as theft, pick pocketing, street violence, secure, where there is ‘order’. The importance of order can also be derived house-breaking etc. Criminal from Article 29(2) UDHR and Articles 12, 18, 19, 21 and 224 of the ICCPR which acts that tend to be committed state that certain rights may be limited to meet the just requirements of ‘public by the ‘well to do’, such as safety, (public) order, health or morals’ or in the interest of ‘national security’ or ﬁscal offences, tend to receive far less public attention and for respect of the rights or reputations of others (though some may never be are not considered a threat to limited). Order must be maintained as it is in everyone’s interest; and everyone order according to this line of is to contribute as everyone ‘has duties to the community’ (as stated in Article argument. Many authors make 29(1) UDHR).5 this point. See for example Chevigny, P., 1995, Edge of the knife, police violence in the We will deﬁne order as ‘a state of peaceful harmony under a constituted Americas; Smith, B.W., 2004, authority’.6 Order is not a fully neutral concept however. Some will argue that “Structural and organizational order means the absence of those that disobey laws. Yet others may argue predictors of homicide by police.” that the maintenance of order aims at preserving the inequitable distribution of 8 ) AI, 2003, Shattered Lives. resources. 7 Order tends to be deﬁned by those in power as the absence of any 9 ) See www.humansecurity- threat to their own power. It is for this reason that political leaders sometimes report.info for the 2005 Human seek to curtail peoples’ right to associate and assemble in order to prevent the Security Report. emergence of any opposition that may question their position. The repression of dissidents is then justiﬁed as ‘a necessary measure for the maintenance of order.’ Security is a shared responsibility Order is related to the concept of ‘community safety’. In fact one could say that order is a concept that State agencies would use, whereas community safety is the concept used ‘on the ground’.8 This ‘local perspective’, as opposed to the national perspective, is all the more relevant as it has become clear in recent years that States are not always successful in their ability to ensure peace and order. Indeed, a State’s capacity to intervene in conﬂicts of all sorts and inﬂuence non-State actors is limited and is sometimes biased in favour of speciﬁc interests. Moreover, ensuring community safety requires cooperation amongst all the relevant entities involved, as well as civil society. The UN has responded to this challenge with the concept of ‘human security’.9 This emphasises the notion that States are required to protect peoples’ rights but should also support their empowerment so as to enhance their potential for self-protection. It is worth noting that the human security concept relates to all human rights including economic, social and cultural rights and again State Responsibility for Law and Order 57 acknowledges the “indivisibility of security, economic development and human freedom.”10 Human rights advocates may feel somewhat uncomfortable with the order concept. Order may have a connotation of conservatism and maintenance of the status quo. However, order as intended in Article 28 of the UDHR, does not mean the adherence to rules regardless of the content of those rules. Indeed, in a gang-ruled community order can be maintained through fear. It follows from the ‘right to security’ that order is to be seen as including non- arbitrariness and predictability of what rules and norms will apply.11 This means the State ought to be guided by principles of the rule of law and human rights so as to increase the likelihood that harmony is indeed peacefully acquired and maintained. ‘Order’ as such is a hollow concept. For order to be in line with human rights principles it must be based on the rule of law and lead to ‘the ideal of free human beings enjoying all their rights’. Measuring crime as an indicator of order and security In order to give effect to their responsibility for the maintenance of order in their territory, States require some insight into levels of ‘order’ within the country. Some may argue that to achieve this, it is sufﬁcient to measure the volume of crime and use this as an indicator of how secure society is. However, doing so ignores the fact that people’s sense of security is affected by more factors than crime alone. Indeed, in order to develop an effective security policy some insight into both objective crime rates as well as people’s sense of security is required. In many countries in all regions of the world governments are confronted with populations experiencing a sense of insecurity, often as a result of (real) high levels of crime but also stemming from fear of terrorist attacks, sensationalist media coverage etc. Indeed, fear of crime is largely driven by perceptions rather than realities. Managing perceptions and expectations of the public should be part of an effective security strategy – without forgetting real levels of crime of course. High levels of fear of crime 10 ) Secretary-Generals’ may in itself constitute a failure of the State’s responsibility to provide security. High-Level Panel on Threats, Challenges and Changes, 2004, Do note that not all crimes make people feel equally as insecure. Crimes A more secure world: our involving violence in particular disrupt people’s sense of security. shared responsibility. 11 ) Kleinfeld Belton, R., 2005, To be able to make accurate statements about levels of crime and security Competing deﬁnitions of the rule of law. requires the monitoring of crime, both qualitatively and quantitatively. 12 ) Reference to the Measuring crime objectively is extremely difﬁcult. Measuring State registration of crimes in effectiveness in dealing with crime is equally difﬁcult, if not impossible. To get international human rights a minimally reliable ﬁgure of real crime rates, a combination of public surveys, standards (as well as in the victim studies, offenders studies and statistics of crime reports should be used. work of AI) has thus far been largely restricted to the It is important to use a combination, since any of these sources used alone context of violence against can be unreliable and therefore insufﬁcient. For example, not everyone reports women and discrimination, crimes and police tend to mis-record certain crimes, making this statistic an rather than focusing on the unreliable source for identifying the number of crimes in a particular area and importance of registration in ensuring the monitoring of in a given time period.12 Note that in some countries crime statistics become ‘overall security’ as such. unreliable because of police tactics to suppress crime through 58 Understanding Policing non-registration. This is due to various factors including the way police performance is evaluated. Sometimes the government does not want the police to register all crimes as any increase in crime ﬁgures can be used by opposition groups to criticise the government. Non-registration of their complaints by the police is indeed a major and very common grievance of citizens in many countries. By combining various sources, the inaccuracies can be minimised. The Vera Institute of Justice has published a useful tool that provides guidance on how to measure various aspects of ‘safety and justice’ and identiﬁes valid performance indicators.13 2.2.2. Rule of law: a precondition for order The preamble to the UDHR states: “It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” The UN have deﬁned rule of law as follows: “Rule of law (…) refers to the principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and legal transparency.”14 The rule of law, as an essential element of lasting peace, is an essential element of Amnesty International’s mission which states: “Amnesty International urges all governments to observe the rule of law.” The rule of law terminology is strongly connected to democracy and human rights; in fact it is stated in many UN documents that the three should always go together as they are so strongly linked. However there is some debate over what is meant by the rule of law.15 Procedural formalists would argue that ‘rule of law’ simply refers to the existence of laws and a system ensuring compliance with these laws regardless of the law-making process and the content of those laws. Under such a viewpoint apartheid laws would not be contradictory to rule of 13 ) Vera Institute of Justice, law principles for example. 2003, Measuring progress toward safety and justice: A global guide to the design of Another interpretation of rule of law focuses on the institutions necessary for performance indicators across upholding rule of law, including comprehensive laws, well functioning courts the justice sector. and independent judges and law enforcement machinery. Yet, rule of law 14 ) Report of the Secretary- can also be about achieving certain goals, for which these institutions are General, 2004. The rule of law and transitional justice necessary, yet insufﬁcient. These goals are16: in conﬂict and post-conﬂict 1. A government bound by law societies. 2. Equality before the law 15 ) Kleinfeld Belton, Rachel 3. Law and order (2005), Competing deﬁnitions of the rule of law. 4. Predictable and effective rulings 16 ) Ibid. 5. Respect for human rights State Responsibility for Law and Order 59 It is this latter normative interpretation of the rule of law – meaning the establishment of institutions seeking to achieve all ﬁve goals – that is advocated by human rights organizations, including Amnesty International. Clearly, human rights must be an integral element (whereas for ‘procedural formalists’ the ﬁrst four points would sufﬁce). This position also implies that ‘mere’ advocacy for the establishment of rule of law institutions does not sufﬁce. One of the objectives of the rule of law is to establish order, order that subsequently must be based on the rule of law. Establishing and maintaining the rule of law is one of the means a State has to ensure order. It goes without saying that the existence of the rule of law is fundamental to human rights based policing as it deﬁnes and limits both police functions and powers, provides guidelines governing professional conduct, and places the police within the broader security system.17 Adherence to the rule of law obviously requires a well-functioning system of laws protecting people’s rights, be they civil, cultural, economic, political or social rights. Police may sometimes say “laws limit their work” while the opposite in fact is true: law makes it possible for them to do their work. 2.3. State responsibility The maintenance of order is one of the core objectives of the State as it is necessary for the continuity of the State itself: “No service of government is more fundamental than protecting people’s bodies and possessions. Indeed, the relationship between personal security and government is tautological: if people are not provided with protection at some minimum level, government is not considered to exist.”18 Indeed, any relatively stable government, whether democratic or authoritarian, will develop some security and justice arrangements, including the establishment of law enforcement agencies, and carry the responsibility for upholding the rule of law and the maintenance of order. The maintenance of order is also a legal requirement on States. Under 17 ) Report of the Secretary- international law States are ultimately responsible for maintaining and ensuring General, 2002, Strengthening peace and security within their territories so that their citizens can fully enjoy the rule of law. their human rights. This follows from the preamble of the UDHR which states: 18 ) Bayley, D. and C. Shearing, 2001, The new structure “Whereas Member States have pledged themselves to achieve, in co-operation of policing. Description, with the United Nations, the promotion of universal respect for and observance conceptualization and research of human rights and fundamental freedoms”. This is reiterated in the preambles agenda, p.30. of the ICESCR and the ICCPR: “the obligation of States under the Charter of the 19 ) AI, 2003, Shattered lives, especially its section United Nations to promote universal respect for, and observance of, human on the duty of the State to rights and freedoms.” Amnesty International strives to ensure that States protect its citizens (p. 79-81); uphold their responsibilities in the ﬁeld of human rights under international AI, 2004, Making rights a law. In various reports, most notably Shattered lives and Making rights a reality, reality, especially Chapter 2; AI, 2002, Rights at risk, on the organization has formulated language on State responsibility.19 Indeed, the security legislation and law right to security translates to the State’s duty to maintain order and provide enforcement measures. security. 60 Understanding Policing International law puts both negative and positive obligations on States: States should not abuse their powers and should protect people’s freedoms respectively. In Making rights a reality, reference is made by Amnesty International to the (draft) articles on the Responsibility of States for Wrongful Acts.20 According to these an internationally wrongful act refers to an act or omission that is attributable to a State and constitutes a breach of an international obligation of the State. States bear legal responsibility for respecting and implementing human rights standards within their territories and in territories where they have effective control and jurisdiction. This includes the obligation to prevent people’s rights being violated or abused by State ofﬁcials or others and to promote the full enjoyment of human rights. If private citizens threaten to abuse those rights, certainly the right to life and security of the person, a State is, under international law, obliged to prevent such from happening. If the abuse has taken place a State is, under international law, obliged to investigate and prosecute in accordance with international human rights standards.21 This principle is the basis of the legal concept of due diligence.22 States are responsible and must take positive measures for upholding people’s rights and can be held accountable when failing to do so. For our purposes here it follows from the foregoing that States are responsible for guaranteeing security by establishing and maintaining order and creating a system to ensure this. States must ensure State representatives uphold human rights standards, i.e. avoid abusing their powers in the course of their duties, and must protect human rights standards, i.e. actively ensure basic security for all people within the territory over which the State has effective jurisdiction. ‘The State’ is an abstract concept. It is represented by ‘organs’ “whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State, whose conduct shall be considered an act of that State under international law. An organ includes any person or entity which has that status in accordance with the internal law of the State.”23 It is clear that police agencies, as well as individual police ofﬁcers, fall within the above deﬁnition of an organ representative of the State and therefore assume State responsibility. Through their objectives of maintaining public 20 ) UN General Assembly order, and preventing and detecting crime, the police are one of the key State resolution 56/ 83 adopted organs responsible for the protection of human rights. With reference to due on 28 January 2002. The diligence, this means that when the police know, or should have known, of Articles are annexed to the resolution “without prejudice human rights abuses and fail to act to prevent them from happening, they to the question of their future bear responsibility under international law. However, the relationship between adoption or other appropriate policing and the due diligence responsibility of the State is often more complex. action.” How actively should police investigate certain crimes? And at what cost – what 21 ) Ibid. could go ignored? Are all crimes appropriate for police involvement? It is a 22 ) AI, 2004, Making rights a reality, p. 7; AI, 2003, Shattered responsibility of the State to employ optimal efforts to try to prevent human lives, p.81. rights abuses of any kind. State agencies other than the police may in fact be 23 ) See note 20. Article 4. more effective and better equipped than the police. State Responsibility for Law and Order 61 Although States are responsible for the maintenance of order, it is clear that they are not always effective in protecting the security of their people or providing an effective security system, as is documented in many of Amnesty International’s reports. The resulting security gap in many countries is ﬁlled by armed groups or vigilantes threatening to replace State institutions as the signiﬁcant security providers, often in fact contributing to increasing insecurity and signalling or causing a situation of disorder. In some countries private security forces step into the security domain, with mixed results.24 Amnesty International takes the position that the State need not monopolise the security sector, and that there is room for non-state ‘orderings’, including community-generated security initiatives (which may also be outside the formal legal process). However, the organization is also clear that the State is ultimately responsible if any of these ‘orderings’, including the private security sector, or vigilante groups, violate human rights.25 The paradox is evident; if the State is not effective in providing security for all its people, other players emerge, yet on condition that the State can (and will) regulate effectiveness and equity and preferably can (and will) step in whenever necessary – which was exactly the problem in the ﬁrst place.26 The issue of private security providers is discussed further in Section 2.4. Note that in some countries, mostly but not limited to Africa, the idea of the State maintaining security is alien to indigenous culture and traditions. In these countries traditional justice systems sometimes support local communities in the maintenance of order and the resolution of conﬂicts. Very often traditional justice encompasses some kind of a court function where individuals (either elected or leaders through inheritance) solve conﬂicts and problems that may threaten the peaceful harmony of the community. This may concern marital disputes, thefts, violence etc. For some countries the establishment of a formal judicial system in line with international human rights standards that is accessible to all is simply a bridge too far. In those countries, where ofﬁcial agencies may be located hundreds of miles away, requiring days of travel to register a criminal act, the traditional system can ﬁll the gap and prevent impunity. However, it should be noted that traditional systems are in 24 ) Goldsmith, A., 2003, many situations discriminatory against women, children and juveniles. 27 “Policing weak states: citizen safety and state responsibility.” 25 ) AI – Netherlands, 2004, Amnesty International’s 2.4. Security and justice systems recommendations on policing. A review and guide, p.17. 2.4.1. Introduction 26 ) See note 24. All States develop various institutions and entities with the aim of maintaining 27 ) Penal Reform International, order and ensuring security. These form their security and justice systems. January, 2001, Access to justice in sub-Saharan Africa; the role For most of these, if not all, legislation deﬁnes their objectives, structures and of traditional and informal powers. Laws, rules and regulations, national and local policies and operational justice systems. codes are used to direct what these agencies do and how they do it. As is 28 ) General Assembly recognized in the resolution with which the UN Code of Conduct was adopted, Resolution 34/169 adopting the UN Code of Conduct, 17 effective law enforcement depends on a “well-conceived, popularly accepted Dec. 1979 and humane system of laws.”28 Non-State actors operating in the security 62 Understanding Policing domain, such as private companies, are in most jurisdictions bound by law just like any other citizen. Police are just one of a number of State institutions responsible for the maintenance of order. They have a limited responsibility when it comes to restoring public order as they are only equipped and trained to do so to a limited extent. The security and justice systems of a country are partly overlapping and mutually reinforcing. Effectively maintaining order will help to prevent crime and an effective criminal justice system will support the maintenance of order. In this Section we will look at those players in the security and justice ﬁeld with whom police cooperate and on whom they depend. 2.4.2. The security system The security sector includes all agencies involved in the lawful maintenance of security. It includes the police, ‘Special Forces’, army, military police, security intelligence agencies and private security agencies. Note that there are also ‘auxiliary services’ such as social workers, schools, housing co-operatives etc. that all play a role in the maintenance of order. In fact: “Everyone plays a role in these processes – parents, siblings, peers, friends, acquaintances, colleagues and a host of authority ﬁgures.”29 Of course there are also those that are unlawfully involved in the maintenance of public order such as vigilantes and paramilitary groups. Having so many different players in the security ﬁeld, sometimes with similar institutional objectives, creates particular dynamics. As the security sector is often based on some level of secrecy, cooperation amongst agencies is not always easy. Indeed, in some situations competition between agencies is not uncommon. It follows that the different objectives and operational boundaries of various players in the security ﬁeld should be clearly deﬁned and limited. In the next Sections we will look more closely at those entities involved in providing security and the maintenance of order whose activities may strongly affect police work. 2.4.2.a. The military In principle the division between the tasks of the police and the military is simple; police deal with domestic, public, security while the army deals with external threats. Police are to engage with the communities they serve, being responsive and accountable to them.30 The military on the other hand are trained and tasked to deal with an enemy threatening the State. Responsiveness to the community is not a relevant value for the military and 29 ) Bayley & Shearing, 2001, accountability lines are typically internal within the hierarchy with only the The new structure of policing. highest commander being publicly accountable. This division in tasks explains Description, conceptualization and research agenda, p.2. most of the differences between military and civilian ofﬁcers, including: 30 ) See note 28. State Responsibility for Law and Order 63 • Soldiers do not have discretionary powers: they “take orders from above rather than responding to the appeals of individual citizens” 31 • Soldiers tend to operate in groups whereas police tend to work alone or in pairs • Soldiers’ means of conﬂict resolution are very different: “their use of force is much less restrained.”32 The military are trained to use force to kill, whereas the police are only to shoot to kill as a last resort • “Secrecy is a more ingrained mindset”33 within the military In many countries the military receive (far) greater prestige and resources than the police do (sometimes even de facto over-ruling the police) sometimes leaving the police under-equipped and under-resourced. This can have particularly negative consequences in countries in transition where crime tends to rise while the old security system (typically of a military type) is dismantled and the new one (typically of a civilian type) has not yet adequately established itself. An example can be seen in Nigeria: “In Nigeria, as in other transitional states, the military left the scene with their bullet-proof vests, high-performance vehicles, life insurance and higher motivation. The police that succeeded them lacked resources and the government was not in a haste to equip them fully. It did not take long for the consequence to be noticed on the streets in terms of increased crime.”34 Even though the military’s primary task is to deal with ‘external’ threats, they are sometimes called upon to restore public order when (internal) disturbances are violent and ongoing. The Sudanese Police Forces Act 1999 (Article 8) for example, provides that when a state of emergency is declared the President may reintegrate the Police Forces into the People’s Armed Forces at which time they will operate under the laws and regulations of those armed forces. In situations of disorder or internal disturbance, as well as in emergency situations where ﬁrm and fast action is needed, military tactics, including their strict command and minimal discretion, may be perceived as more effective than police tactics. Indeed, police units trained for riot control typically have more military features than other police departments do. The opposite is also true. Military peacekeeping units performing policing functions in post- conﬂict situations sometimes adopt civilian police tactics including establishing community relations and driving around unarmed and without helmets. 31 ) Bayley, D., 2001, Democratizing the police Indeed, in some countries, typically in many central and South American abroad: What to do and how to do it, p.38/39. countries, the distinction between the police and the army is not so clear. 32 ) Ibid. Civil policing and military duties are blurred where soldiers perform police 33 ) Ibid. functions regardless of the circumstances, as a normal part of their duties and 34 ) Cavallaro, J.L., 2003, Crime, States sometimes decide to deploy (part of) the civil police with the military. public order and human rights, p.22. Moreover, in some countries police are required to perform military duties 35 ) Goldsmith, A., 2003, when ordered to do so simply because the regimes trust the police more than “Policing weak states: citizen the military.35 Police are sometimes even ordered to perform military duties safety and state responsibility.” outside the State’s territory. For example some time between 1997 and 2002, 36 ) AI, 2003, Republic of Congo: A past that haunts the the Angolan government sent their paramilitary Rapid Intervention Police to future. Congo Brazzaville to ﬁght as military combatants.36 64 Understanding Policing Clearly delineating the separation between internal security and national defense is a priority for achieving democratic policing and respect for citizens’ rights. Not only should there be clear separation of duties but when military do perform police functions and vice versa there should be clear criteria for when and how and for how long. In particular it should be clear under what legal and operational procedures the military are performing police functions and using police powers, with special emphasis on those procedures guiding the use of force as well as the means of force available. Paramilitary Many countries operate paramilitary police forces, often for political rather than public interests.37 Amnesty International has documented many examples of paramilitary forces responsible for excessive use of force. In many situations these paramilitary forces are not trained as police but do carry out police functions and have police powers. The term ‘paramilitary’ is ambiguous. In some country contexts it is used to refer to non-State armed groups (whether operating with or without the tacit approval of the State), while in others they are an ofﬁcial part of the State security apparatus. Those carrying out research into security systems should be aware of the complexities of the command structures of any ‘paramilitary’ groups as well as related complexities surrounding issues of accountability. Militarization of police In most countries police are civilian in nature and origin, attached to the Ministry of the Interior or Justice rather than Defence.38 Some countries, including France, Turkey and Chile, have dual systems where ‘Gendarmerie’ agencies, originating from the military (sometimes still within the hierarchy of the Ministry of Defence but under (local) civilian authorities) operate next to the civilian police. In many countries the police have strong military features: they wear combat uniforms, patrol in groups, have a military type ranking system (Police General rather than Commissioner) and live in separate compounds. Militarization of police may show itself in many aspects including: • The hierarchical system in use 37 ) See for example: AI, 2002, • The culture Policing to protect human • Training aspects (in a militarized system typically much time is rights. spent on marching) 38 ) Art. 13 the European Code • Living quarters of police ofﬁcers (in a militarized system police typically of Police Ethics requires the police to be placed under live in separate compounds, isolated from the communities they serve) civilian authorities, with the • Personnel policies (in a militarized system ofﬁcers tend to be commentary adding that “A transferred without being consulted) police organization under • Operational tactics being used civilian responsibility is likely to best cultivate police professionalism suitable for In theory and in practice it is undoubtedly considered best practice for the civil society.” police to be as non-militarized as possible, since more militarized police tend to State Responsibility for Law and Order 65 be less responsive to community needs (as a consequence of culture as well as methods) and will experience difﬁculties in establishing relationships with the public.39 It is for this reason that even in times of disorder it is recommended that basic law enforcement responsibilities be kept in the hands of civil law enforcement agencies for as long as possible.40 This having been said, some authors argue that some ‘functional blurring’ may be appropriate in fragile environments since “militarization can make police more violent, but its associated hierarchical structures and discipline may also offer a potential tool for controlling brutality and ensuring a degree of public safety.”41 The Inter American Commission on Human Rights (IACHR) “The lack of clear delineation between police and the army is a serious 39 ) See for example O’Rawe, problem in many countries within the jurisdiction of the IACHR. The M. & L. Moore, 1997, Human Commission has addressed the issue repeatedly, stating that, “a state must rights on duty; Bayley, D., not permit the Armed Forces to inﬂuence the actions of police institutions.” It 2001, Democratizing the police abroad: What to do and how has also afﬁrmed that, “given that the Armed Forces lack proper training for to do it, p.39; Rover, C. de, controlling internal security, it is the responsibility of an effective and rights- 1998, To serve and to protect; respecting civilian police force to combat insecurity, crime, and violence Crawshaw, R., e.a., 1998, internally.” In addition to noting the differences in military and police training Human rights and policing. Standards for good behaviour in its 1998 Annual Report, the IACHR recommended that, “the Armed Forces and a strategy for change. not be deployed for the purposes of law enforcement. Due to their specialty, 40 ) Rover, C. de, 1998, To serve complexity and degree of interaction with civilians, the investigation of and to protect. common crimes and arrests, amongst other tasks, require a duly trained police 41 ) Global Facilitation Network for Security Sector Reform, corps particularly respectful of the Law.” 2005, Compendium of good (…) According to the IACHR, when states authorize military interventions practices on security sector in internal security matters, they confuse the concepts of public security reform. and national security. Neither the abuse of “states of exception” nor the 42 ) The text, and the IACHR quotes, in this box are extraordinary increase in crime can justify the intrusion of the military in taken from Civil Society matters related to internal security. Another worrying aspect of militarization Organizations and the is the continued use of military jurisdiction for misconduct, even when soldiers Inter-American System for are engaged in policing functions. For their part, police forces continue to be the Protection of Human deeply militarized in their organizational structures and educational systems, Rights Face Citizen Security Challenges in the Americas. and in their control and disciplinary mechanisms.” 42 Document prepared for the hearing on Citizen Security and Human Rights At the 2.4.2.b. Internal Security Agencies Inter-American Commission on Human Rights, presented As a general rule of thumb the police are restricted to crime prevention and on October 14, 2005, issued detection the maintenance of public order. Their intelligence gathering, carried by a conglomeration of human out under a Criminal Procedure Code, is restricted to criminal intelligence. rights NGOs. Police should not actively gather political intelligence. Gathering political 43 ) Despite secrecy being their core business, Security intelligence about State security rather than crime is the prime responsibility of Agencies have opened up Security Agencies whose function it is to prevent (foreign) threats against the slightly recently. E.g. the US State. As Security Agencies tend to operate under secrecy, their accountability National Security Agency and lines are quite different from the police. Generally, Security Agencies report to the UK based MI5 both have websites explaining their a secret parliamentary commission and/or are (internally) accountable to the mission and objectives. Minister of the Interior.43 66 Understanding Policing The exact distinction between police and internal security agencies is not always clear. In some countries Security Agencies are separated entirely from the police, necessitating some kind of coordinating mechanism for exchanging relevant information. In others, such as Malaysia and Ireland, both are performed within the same agency (though not necessarily by the same ofﬁcers). In still others, police have ‘security ofﬁcers’ accountable to both the police and the Security Agency. The focus of these Internal Security Agencies tends to be different to that of the police: their ﬁrst priority is to prevent acts that may disrupt the State, without having to pay much attention to how this is accomplished. As such, they are less inclined to follow rules of procedure under the Criminal Law, as the police are required to do. In some countries Internal Security Agencies operate under different legislation to the police. Clearly however it is important to note that, when they do have police powers such as the power to arrest and detain, and the power to use force, the principles of the UN Code of Conduct for Law Enforcement Ofﬁcials should be applied as a safeguard against human rights violations. Intelligence is a vital ‘resource’ for both police and Security Agencies. It is not always clear what intelligence is criminal and what is political and information held by police may be interesting for Security purposes. Indeed, the demarcation between police and security agencies can become unclear with Security Agencies, often without proper training in the law of evidence, gathering information that is used as evidence in court and police using their community relations for gathering intelligence that is used for political reasons. Due process standards in criminal trials can be undermined by the fact that Security Agencies tend to be unwilling to disclose both their sources of information and the actual information itself, which often is ‘classiﬁed’. Conversely, if police start using their community relations for gathering political information they risk losing the trust of their communities. This is especially the case with intelligence regarding “terrorism”. “Terrorism” for some involves criminal acts, though with a political motive, and for others is seen as purely a political act. As a consequence both police and Security Agencies may be interested in gathering intelligence about “terrorists.” Security Services in the Council of Europe Within the Council of Europe, the general characteristics of internal security 44 ) The PC-S-SEC was asked services of Member States have been identiﬁed and deﬁned in recent years.44 by the Council of Europe’s The Group of Specialists on Internal Security Services (PC-S-SEC) which looked Committee on Crime into this issue concluded that the existence of an internal security service is Problems (CDPC) to submit a report on the feasibility of based on the fundamental principle of international law that a state is entitled recommendations on security to protect its national security (which may be deﬁned in national law), which in services. The CDPC considered turn is justiﬁed by the principle that national sovereignty requires protection. the report of the Group at its National security is considered as the backbone of national sovereignty. The 52nd Plenary Session (16-20 June 2003): CDPC (2003) 09, internal security services contribute to the protection of human rights; they Addendum IV. are part of the constitutional state and operate under the legal system. This State Responsibility for Law and Order 67 means that the functioning of an internal security service is not just aimed at defending the national security but also at protecting and guaranteeing the human rights of its citizens. The PC-S-SEC further concluded that all internal security services are embedded in their national legal frameworks, either in the constitution, or in speciﬁc laws, or in laws regulating other governmental bodies as a means of safeguarding the application of the rule of law. They should be organised and operate based on rules laid down by statute. In this respect it was considered as a general principle that all laws should go through the normal parliamentary law-making process, which is by its nature a public procedure. This means that any statute establishing internal security services should be in accordance with the principle of legality. The PC-S-SEC identiﬁed that one of the functions of internal security services can be to prevent threats of a serious criminal nature and that the information internal security services obtain may be of great assistance to law enforcement agencies. It concluded that since one of the functions of an internal security service can be to assist law enforcement agencies, it is justiﬁed – as is the case in some Council of Europe member States – that internal security services are organised within a law enforcement agency. It recognised that the functions and powers of law enforcement and intelligence gathering are separate but complementary and that it was a matter for each member State to decide how best to protect its national security and to structure its internal security services. However, it concluded that whatever structure was adopted must be legal and that where the functions are carried out by different bodies, legislation should build in safeguards to ensure a proper balance between the necessity to keep information conﬁdential, if and when necessary for national security reasons, and, if required by law, a proper mechanism to inform law enforcement agencies, when necessary in a speciﬁc case or required by law. Where documentation containing information on persons gathered by internal security services is subsequently used in court as evidence by a public prosecutor, the equality of arms principle requires that this information be accessible to the defendant. 2.4.2.c. Private security providers As we have seen, the State cannot, and need not, provide security in isolation. Non-State actors, including private security companies, play an important and ever-increasing role. This is sometimes referred to as the ‘privatization of policing’ as if private companies and individuals increasingly take over the police function. This may be an oversimpliﬁcation. What is happening is not so much the privatization of police functions, but rather ‘multilateralization’: “a host of non-governmental groups have assumed responsibility for their own protection, and a host of non-governmental agencies have undertaken to 45 ) Bayley & Shearing, 2001, The new structure of policing. provide security services.”45 Indeed, both sponsors and providers of policing Description, conceptualization can be public or private. Various groups can authorise policing (the auspices of and research agenda, p.1 security) including those representing economic interests (businesses as well 68 Understanding Policing as criminal gangs), residential communities, cultural communities, individuals and governments; and various groups can provide (non-governmental) policing, including commercial security companies, non-governmental auspices acting as their own providers (industries, real estate developers, neighbourhoods), individuals and strange enough governments themselves. Governments providing non-state policing services may seem somewhat awkward but is very real as can be seen when governments allow police ofﬁcials to work in their ofﬁcial uniform off-duty for private gain (called ‘moonlighting’); and in situations where governments charge for policing services (such as policing commercial events and responding to private burglar alarms). ‘Multilateralization’ of police functions is a reality. Moreover this is not new: “it could be argued that the monopolization of policing by government is an aberration. It is only in the past 100 to 200 years that policing has been effectively monopolized by governments, and even that was not uniform across countries.” 46 However, it must be clear that the government remains ultimately responsible for policing. Justice, equality of service and quality of service, are to be respected at all times. In order to understand the current dynamics and complexities in security maintenance the process of multilaterization must be fully understood. The phenomenon of security provided by private companies is not without concerns. Several observers have pointed to the negative effect on public police practices. As the line between private and public security is not always clear, responsibilities for who is doing what as well as lines of accountability can get blurred, sometimes leading to a loss of trust in public police. Furthermore public and private providers often employ different practices based on the powers they are able to lawfully operate: public police tend to prevent crime through resort to use of force; private providers tend to do so through exclusion and the regulation of access.47 All in all it seems that an inﬂux of private security providers seems to lead to public police becoming less service and community-oriented and focused increasingly on situations where they are more prone to use force. In recent years, Amnesty International has particularly focused on the context of the employment of private security by multinational companies or the secondment of police ofﬁcers to the employment of such companies to defend property, recommending for example that companies should not employ personnel with a record of human rights abuses and that private security companies should be subject to national regulations ensuring strict accountability and that security procedures employed by private security personnel should be consistent with the human rights standards including measures to prevent excessive force, as well as torture or cruel, inhuman or 46 ) Ibid. p.1. degrading treatment.48 47 ) Ibid. 48 ) AI’s 2004 booklet on 2.4.3. The criminal justice system UN human rights norms for business, Towards Legal The criminal justice system is responsible for criminal investigation, Accountability. prosecution and adjudication, as well as the execution of sentences. It State Responsibility for Law and Order 69 includes such institutions as the police, prosecution, judiciary, probation and prisons services (and some would argue it also involves non-State players like private investigators and traditional and informal actors). All agencies within the criminal justice system interrelate and are dependent upon each other. There are countless examples of police keeping someone detained without trial as a means of avoiding an overloaded and/or ineffective court system; public mistrust in trial decisions leading to public and/or police vigilantism; police making crucial procedural errors in investigations leading to release of suspects; sentenced criminals being released because of overcrowded prisons, not to mention corrupt practices where the entire criminal justice system is rendered ineffective. The quality of the overall criminal justice system undoubtedly contributes to the maintenance of security, though the effect of the criminal justice system on crime is limited: a large percentage of all crimes go unpunished. One important aspect of the criminal justice system that contributes to security has to do with access to justice. Users of this Resource Book researching the role of police should be aware of broader issues around accessing justice – for example the existence of an adequate security and justice infrastructure throughout a country, properly trained representatives of the judiciary, law enforcement and judicial personnel with a knowledge of local languages and culture amongst others – and the role and obligations of police in ensuring access to justice.49 Criminal justice systems are ordinarily based on one of two judicial systems: the accusatorial (or adversarial) common law system and the inquisitorial civil law system: • Under the inquisitorial civil law system police and prosecution as well as judges are considered as neutral and objective ‘servants of the law’ working to ﬁnd the objective truth. The pre-trial judge or investigating magistrate, assisted by the prosecutor, is primarily responsible for the criminal investigation, actively involved in determining the facts of the case, whereas one or more judges are in charge of the trial. The system is focused on the accused. • Under the accusatorial common law system both parties (defence and prosecution) have the same standing at trial and during trial are considered as equal parties in search of the (‘subjective’) truth. The judge, sometimes assisted by a jury, is there to mediate and safeguard the judicial process – as an impartial referee between parties. The purpose of the investigation for the prosecutor is to obtain information that will convince the judge or jury that sufﬁcient proof exists to 49 ) Vera Institute of Justice, 2003, Measuring progress prosecute and convict the accused. toward safety and justice: A global guide to the design of Of-course in practise these systems are not followed in such pure forms and performance indicators across quite often there is mix of an inquisitorial pre-trial phase and an accusatorial the justice sector. This guide trial phase. Very generally speaking one can say that the UK and USA as well has a section on performance indicators for measuring as most (former) British Commonwealth countries tend to have a moderately access to justice. accusatorial and most of the European continental countries, most Latin 70 Understanding Policing American countries and countries that were under Soviet inﬂuence have a moderately inquisitorial judicial system. The different systems result in different roles for the prosecutor – in turn affecting the police. In the inquisitorial (continental) system the investigation takes place under the authority of the pre-trial judge or investigating magistrate assisted by the prosecution. The prosecutor starts the investigation, directs it and takes the results to court. The other party – the suspect and his/her legal representative – are rather passive and usually do not actively conduct any investigation themselves (they may however request the investigative judge to carry out certain actions, e.g. hear certain ‘new’ witnesses that went unnoticed by the prosecution). The prosecution role can be carried out by a prosecutor (a party in the trial) or by an (impartial) examining magistrate or pre-trial judge (for example in France, Italy, Belgium). Countries with such a civil law system often have separate judicial police who carry out criminal investigation functions on behalf of the prosecutor. As judicial ofﬁcers, the judicial police are separated from other police functions, such as prevention of crime and the maintenance of public order. In this context the ‘other’ police are known as the ‘preventive police’. In the accusatorial system however, the police carry out the investigation, under their own authority, and take the results of the investigation to the prosecutor who takes them to court. This diminishes the role of the prosecutor substantially but increases the importance of the police role. Such countries often have one police agency carrying out all police functions – though within the agency there are usually separate investigation departments. Further information about the role of police in criminal investigations and prosecutions can be found in Chapter 7. 2.5. Order or disorder? States are responsible for the maintenance of order. However, this doesn’t mean countries are always ultimately stable, peaceful and tranquil. People disagreeing with a government’s policies have the right to demonstrate and organise opposition. This is laid down in article 21 of the ICCPR (right to peaceful assembly) which also states: “No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” Police are to impose these legal restrictions, requiring them to understand people’s rights and freedoms (and to technically know how to deal with demonstrations and assemblies). It is not always easy to distinguish at what point order becomes disorder, nor can a fully neutral judgment always be made. Small-scale non-violent demonstrations do not have to lead to a situation of disorder. On the contrary, they are an expression of people enjoying their civil and political rights to the State Responsibility for Law and Order 71 fullest and show functional participation in the political process.50 Forming peaceful assemblies and staging peaceful demonstrations are basic rights that the police should facilitate rather than obstruct. Police should manage these professionally, in order to prevent them becoming unlawful and/or violent. Indeed: “when a community, or a section of a community, articulates demands on the political system police are to facilitate the transmission of those demands and not to suppress them; it means that when opponents of a regime or government seek to achieve their ends through violence or intimidation, or otherwise illegally, police should frustrate them; it means that when the means or ends of government are at odds with accountable government or the rule of law, police are not to serve those means or ends. In this sense police can act as a ‘conscience of constitutionality’.”51 Yet, those in power can regard such demonstrations, even when peaceful, as disorder threatening the continuity of the State and as such may want to disrupt them. The existence of so-called disorder is often used as an excuse by States to lower human rights standards and safeguards. States tend to give preference to security considerations and argue that restoring order should be given priority over human rights, as it is their duty to provide security. Peaceful assemblies or demonstrations may be an indication of tensions within a society, and these may develop into disturbances – unlawful or violent assemblies. Ultimately, tensions and disturbances may lead to non-international armed conﬂict (civil war), although on most occasions, of course, they do not. The law protecting people in these various situations is different as thresholds are crossed. International human rights law, which seeks to protect people from abuse of power by the State and to secure remedies in the event of human rights abuse, is applicable across all of the thresholds. It is applicable in times of peace, in times of tension and disturbance and in times of armed conﬂict – international and non-international. However its effectiveness is reduced through measures of derogation as States seek lawfully to limit human rights in times of emergency that threaten the life of the nation (see Section 2.6). International humanitarian law, or the law of war, becomes applicable in situations of armed conﬂict (international or non-international). In Appendix H an overview is given of the relevant international humanitarian law. Whatever the level of tensions within a society, civil policing functions continue: i.e. police continue to investigate crimes, provide assistance (where possible) and maintain order (where possible). Adherence to the rule of law and the bringing to justice of criminal offenders, even in situations of conﬂict and disorder, are the prime means by which States prevent impunity leading to an increase in civil disobedience and (organized) crime. That said, responsibility for the maintenance of order may be shared with, or transferred to, State agencies other than the police during states of emergency, most notably to 50 ) Crawshaw, R., e.a., 1998, Special Forces and the military. In any event, international human rights and Human rights and policing. humanitarian law tasks States to uphold certain minimum norms regardless Standards for good behaviour and a strategy for change. of the circumstances. Discrimination and inhumane treatment can never by 51 ) Ibid., p.44. justiﬁed by internal conﬂicts or any other public emergency. 72 Understanding Policing 2.6. A state of emergency In situations such as those described in the previous Section, States can get to the point where they consider it necessary to declare a state of emergency. Human rights treaties allow States to limit human rights when there are emergencies such as war, civil unrest or natural disasters that threaten the life of the nation. 2.6.1. Derogation of human rights under a state of emergency Under article 4 of the ICCPR States can declare a state of emergency and may derogate from their obligations under the ICCPR: “in time of public emergency which threatens the life of the nation and the existence of which is ofﬁcially proclaimed.” This derogation needs to adhere to the principle of proportionality as it is only permitted “to the extent strictly required by the exigencies of the situation” and may not be inconsistent with other obligations under international law nor may it be discriminatory. The State Party must notify other State Parties through the Secretary-General of the UN. From these requirements it follows that derogation must be subject to regular review and must be limited in time. Some rights are non-derogable and these vary according to the treaty. The ICCPR permits no derogation from: • The right to life (Article 6) • The prohibition of torture (Article 7) • Prohibition of slavery (Article 8, paragraphs 1 and 2) • The right not to be held guilty for crimes that didn’t constitute crimes before (Article 15) • To be recognised as a person before law (Article 16) • The right to freedom of thought, conscience and religion (Article 18)52 States that are parties to the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, cannot derogate from this obligation as prescribed in Article 6 of that Protocol. The right to a fair trial can be subject to derogation, as can – amongst others – the rights to freedom of assembly, freedom of association, freedom of expression and the right to privacy. A State can declare a state of emergency when the life of the nation is threatened. However, it is not always clear if and how ‘the life of the nation’ is threatened; nor whether it requires the level of derogation as carried out. Many countries have implemented some kind of security law, very often relating to the threat of “terrorism”, providing their respective police agencies with wider powers and authority. These de facto (but not de jure) states of emergency are not always in accordance with Article 4 of the ICCPR, and if so are a violation of international law. Both declaring a state of emergency and implementing 52 ) Not to be imprisoned security legislation are in practice not always governed by objective for not fulﬁlling a contractual obligation (Art.11, ICCPR) is considerations: what happens if the vast majority of people of that area do another non-derogable right. not agree with the government’s assessment of the situation and do not want State Responsibility for Law and Order 73 the emergency law to be promulgated? Who will decide that the proclamation of emergency is absolutely essential to meet the threat to the security of the country or province and that the force used is necessary and proportionate to the situation?53 The Human Rights Committee (HRC) has given an elaborate seven-page authoritative interpretation of Article 4 of the ICCPR in its General Comment 29.54 It is recommended that readers familiarise themselves with this comment thoroughly and pay particular attention to those aspects dealing with law enforcement and maintenance of public order issues. The comment clearly states that ‘restoration of a state of normalcy’ must be the predominant objective of derogation. The requirement of Article 4 that derogation measures must be ‘limited to the extent strictly required’ “relates to the duration, geographical coverage and material scope of the state of emergency and any measures resorted to because of the emergency.”55 The HRC stresses the importance of adhering to the principles of legality and rule of law ‘at times when they are most needed’. Derogation may not be inconsistent with other obligations under international law, particularly humanitarian law (see appendix H). As stated by the HRC: “States parties may in no circumstances invoke Article 4 of the Covenant as justiﬁcation for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.”56 Other elements of fair trial that should be respected include the condition that only courts may try and convict persons for criminal offences and the right to take proceedings before a court to enable the court to decide on the lawfulness of detention.57 All in all, for States to lawfully derogate from human rights they must comply with the following principles: • Derogation must be exceptional and temporary • Absolutely necessary • Proportionate to threat • Non-discriminatory • A state of emergency must be ofﬁcially proclaimed. Declaring such a state of emergency must be necessary to deal with the situation and the measures taken must be appropriate measures • Respect for the inherent dignity of the human being • Respect for those non-derogable rights mentioned earlier. In addition, 53 ) Based on personal communication with Mr. G.P the taking of hostages, abductions or unacknowledged detention are Joshi, CHRI, Police Program always prohibited Coordinator, India. • Derogation must be subject to international review 54 ) HRC, General Comment No 29 adopted on 24 July 2001. 55 ) Ibid., para 4. 2.6.2. Restrict or derogate? 56 ) Ibid., para 11. Some articles of human rights treaties contain limitation clauses, allowing the 57 ) Ibid., para 16. rights they embody to be limited under certain circumstances. For example 74 Understanding Policing Article 21 of the ICCPR protects the right of peaceful assembly. However, it allows restrictions, imposed in conformity with the law and necessary in a democratic society, to be placed on that right for a limited number of purposes. These are the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights of others. The articles protecting the rights to freedom of thought, conscience or religion, to freedom of expression; to freedom of association and to liberty of movement contain similar limitation clauses. Indeed, General Comment 29 of the HRC states that not every disturbance or catastrophe qualiﬁes as a public emergency: “[States] must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation.”58 In other words, it will not always be necessary to declare a state of emergency and limit peoples’ rights, nor can declaring a state of emergency be used to restrict more rights than was necessary to meet the exigencies of the situation. 2.6.3. Absolute rights Some rights are absolute in that States can never derogate from them and they may never be limited in any way. Absolute rights are: • The right to be free from torture and ill-treatment • The right not to be enslaved • The right to freedom of thought and conscience Although the right to life is non-derogable, it is not an absolute right in that there are some circumstances under which agents of the State may use lethal force. However, the right not to be arbitrarily killed is an absolute right. Similarly, the right to liberty of person is not an absolute right as treaty provisions allow for lawful deprivation of liberty. However, the right not to be arbitrarily arrested and/or detained is absolute. See Chapters 5 and 6 for further information on this. Another absolute right implied from all the human rights treaties is that States cannot treat different people differently under similar circumstances; the right not to be discriminated against is implied in all human rights standards. 2.6.4. Terrorism Terrorism represents a particular situation that governments often claim threaten the life of a nation. It iscurrently viewed as a major threat to security.59 There is not one widely accepted deﬁnition of terrorism to guide international norm-setting, although there are moves to address this.60 58 ) Ibid., para 5.0 59 ) Report of the Secretary- Amnesty International welcomes initiatives towards a Terrorism Convention as Generals’ High-Level Panel the organization comes across vague deﬁnitions in security legislation that may on Threats, Challenges and lead to the criminalizing of peaceful activities involving the exercise of rights Changes, 2004, A more that are protected under international law as well as the jeopardizing of rights secure world: our shared responsibility. of suspects of security offences.61 60 ) Ibid, para 164. 61 ) AI, 2002, Rights at risk. State Responsibility for Law and Order 75 Terrorism seeks to create disorder and destabilize States. Since governments have a duty to ensure order in their territory they have the right and the duty to protect their people against such threats. However, the means used by States to achieve this often has far reaching effects on the rule of law. Terrorism may lead to States proclaiming a state of emergency. In such cases, States are bound by the conditions discussed above. In practice however, States tend to refrain from ofﬁcially proclaiming a state of emergency but rather implement some kind of security legislation which very often includes the broadening of police functions, granting law enforcement agencies additional powers to search, arrest and detain while weakening safeguards against abuse of those powers. An example is Malaysia, where the government, under provisions of the 1957 Constitution allowing for restrictions to fundamental liberties in the event of serious subversion or organised violence, enacted the Internal Security Act (ISA) in 1960. The ISA, whether or not an ofﬁcial state of emergency has been declared, empowers the police to arrest without a warrant any individual they believe has acted, or is “about to act”, in any manner that may threaten Malaysia’s security, “essential services” or “economic life”. Detainees can be held up to 60 days for investigation with access to lawyers, doctors and family members entirely at the discretion of the police. Subsequently the Minister, acting on the advice of the police, can issue a two year detention order renewably indeﬁnitely. As Amnesty International wrote in its 2005 report: “The ISA has, through a series of amendments, incrementally extended executive powers, while stripping away the judicial safeguards designed to protect against their abuses. Once a person is detained under the ISA, he or she has no effective recourse to legal protection, nor any opportunity to establish their innocence.” 62 Since the ISA was enacted in 1960, states of emergency have been declared on 4 occasions. The declarations in 1964, and 1969 have never formally be annulled by parliament, so many of the legal orders issued under the emergencies remain in force. In many countries facing terrorism governments overlook police misconduct and the public is often willing to accept serious restrictions of their rights if they believe, or are led to believe, it will help them feel safer and protected against terrorism. Governments ultimately succeed in conveying to the public that without tough policing they will not be able to provide a feeling of security. This happens in countries where democracy has taken root, as much as in 62 ) AI, 2005, Malaysia. Towards countries that have emerged from military dictatorships and where politics is human rights-based policing, dominated by a strong military culture, though in such countries the problem is p.15. even more acute. 63 ) OHCHR, 2003, Digest of Jurisprudence of the UN and regional organizations, on Moreover, security legislation often facilitates the targeting of particular groups the protection of HR while “such as human rights defenders, migrants, asylum-seekers and refugees, countering terrorism p. 8. religious and ethnic minorities, political activists and the media.”63 Indeed, The digest discusses relevant some States use the threat of terrorism to sidetrack rule of law institutions and jurisprudence under the ICCPR, ECHR, AHRC and the African restrict political, cultural or other opponents. Charter. 76 Understanding Policing The delicate issue of security and human rights has been addressed by Amnesty International in its Shattered Lives report, as well as in the “anti- terrorist” context in recent years, notably its Rights at Risk report which focuses on the organization’s concerns regarding security legislation and law enforcement measures. In the latter report, Amnesty International states: “The challenge to States, therefore, is not to promote security at the expense of human rights but rather to ensure that all people enjoy respect for the full range of rights. The protection of human rights has been falsely described as being in opposition to effective action against “terrorism”. Some people have argued that the threat of “terrorism” can justify limiting or suspending human rights. Even the prohibition to torture, one of the most basic human rights principles and a rule of international law which binds every state and every individual, has been called into question.”64 Clearly Amnesty International strongly opposes any limitation of rights that is inconsistent with international human rights law. In its Annual Report 2005 Amnesty International states: “Governments have a duty to prevent and punish [atrocities like the bombings in Madrid and the hostage taking of school children in Beslan], but they must do so while fully respecting human rights. Not only is it a moral and legal imperative to observe fundamental human rights all the more stringently in the face of such security threats, in practice it is far more likely to be effective in the long term. Respect for human rights and fundamental freedoms is not optional in efforts to defeat “terrorism”. States’ efforts to combat “terrorism” must be ﬁrmly and unconditionally grounded in the rule of law and respect for human rights.”65 Human rights are not at odds with security but rather the two should go hand-in-hand. Indeed: “Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. Terrorism itself should also be understood as an assault on basic rights.”66 2.7. Summary Any relatively stable government, whether democratic, authoritarian or other bears the responsibility for upholding the rule of law and the maintenance of order. It will therefore develop some security and justice arrangements, including the establishment of law enforcement agencies. The security sector will invariably include non-State actors. In all their functions police cooperate with other security and justice institutions and entities, both State and non-State actors, to achieve their objectives. 64) AI, 2002, Rights at risk, p.3. Moreover, other entities may share objectives with the police. Indeed, the 65 ) AI, 2005, Annual report effectiveness of the security and justice system as a whole depends on the 2005, p.8. quality of all separate entities involved: the chain is as strong as its weakest 66 ) OHCHR (2003), Digest of link as all entities are interdependent. It is crucial for the effectiveness of the Jurisprudence of the UN and regional organizations, on system that different agencies have clear guidelines and instructions on their the protection of HR while respective functions which also specify their distinct positions and lines of countering terrorism, p.9. accountability as well as their points of interface. An important effect of this State Responsibility for Law and Order 77 interdependence relates to accountability. The police cannot, and should not, be held responsible for misconduct, institutional miscommunication, lack of coordination, policy gaps etc., that are at the responsibility of other ‘partners’ in the security and justice chain. Human rights advocates need to be aware of the role of different agencies within systems established for maintaining order as a means of targeting research and campaigning activities effectively. Order, which we characterised as a state of peaceful harmony under a constituted authority, is not threatened by peoples’ full enjoyment of their rights, including the right to peacefully assemble. Indeed, demonstrations should not be seen as a sign of disorder. However demonstrations can be a sign of tensions in society that may lead to internal disturbances. In situations of disorder States can, under strict conditions, proclaim a state of emergency. In such situations some rights can be subject to derogation, however some rights are non-derogable. Moreover, some rights are absolute, meaning they are non-derogable and can never be limited in any way. © ANP / David H. Wells Law enforcement ofﬁcials shall at all times fulﬁl the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession Article 1, UN Code of Conduct for Law Enforcement Ofﬁcials The work of law enforcement ofﬁcials is a social service of great importance (…) Preamble to the Basic Principles on the Use of Force and Firearms by Law Enforcement Ofﬁcials Like all agencies of the criminal justice system, every law enforcement agency should be representative of and responsive and accountable to the community as a whole General Assembly Resolution 34/169 adopting the UN Code of Conduct for Law Enforcement Ofﬁcials, 17 Dec. 1979 Police Functions 79 3. Police Functions 3.1. Introduction It is the State’s ultimate responsibility to preserve public order so that those people within its jurisdiction can enjoy their rights to the full. Amnesty International has documented countless cases of situations where governments have failed in this responsibility and in fact have contributed to a lack of order and security by committing human rights violations and failing to protect human rights. Numerous State agencies are, either directly or indirectly, involved in securing order. A complex situation of interdependence exists and police are but one of the State agencies involved. In this Chapter we will take a closer look at the speciﬁc objectives police have in maintaining order and providing security and how police agencies aim to achieve these. It is interesting to note that both international human rights standards, as well as human rights literature, tend to ignore police functions, focusing instead on police powers. The importance of police functions is all the more relevant considering the fact that they may represent an area in which a dialogue between the human rights community and police could be most fruitful. Human rights violations can clearly occur because police abuse their powers, and this tends to be the focus of human rights advocates. However, human rights can also be violated due to police not carrying out their functions effectively. Police should do what they are lawfully required to do and they should carry out their work correctly and effectively. Section 3.2. of this Chapter looks at police functions, and Section 3.3. explores some organizational aspects of implementation of these functions. In order to achieve objectives, several policing philosophies have been adopted which incorporate different levels of responsiveness to the communities served. There is continuing debate about which philosophy is most effective. In Section 3.4. we discuss some philosophies practiced around the world and close with some evaluative remarks and a brief summary. Please note that the information provided in this Chapter seeks to support human rights advocates in formulating an informed opinion in a particular context, rather than to formulate universal norms on how things should be. Of-course not all the detail of how police carry out their work or how it is resourced is relevant for human rights advocates, but we hope to point to those areas that are particularly relevant from a human rights perspective. 3.2. Police functions International human rights treaties do not mention the police explicitly, nor their main objectives. Police are usually referred to as law enforcers. They are required to maintain the law and are bound by law themselves. Police are 80 Understanding Policing typically unfamiliar with international law and will rather follow what is set out in national law. Police functions are in most jurisdictions laid down in a Police Act, spelling out the core objectives police should achieve as well as the resources for doing so. Such a Police Act usually also deﬁnes responsibilities of police and their authorities as it deﬁnes how much freedom police have in setting priorities on how to spend their resources. A human rights assessment of policing should include a study of such Police Acts. In Chapter 8, on police accountability, legislative frameworks within which police operate are further explored. 3.2.1. Three basic police functions Though international standards do not deﬁne police functions, in literature as well as in practice over time a common understanding has evolved of the main functions of the police in a democratic State governed by the rule of law.1 These are: • To prevent and detect crime • To maintain public order • To provide assistance to those in need Police functions are about the objectives of the police; what are they here for? They should not be confused with what the police do (i.e. police actions, for example public order management) nor with police powers – both of which are discussed in part III of this Resource Book. These functions also follow from various human rights principles relevant to policing. The resolution adopting the UN Code of Conduct for Law Enforcement Ofﬁcials states that the police must be ‘responsive to the communities they serve.’ Its Article 1 states: “Law enforcement ofﬁcials shall at all times fulﬁl the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession.” The commentary to this Article clariﬁes that “Service to the community is intended to include particularly the rendition of services of assistance to those members of the community who by reason of personal, economic, social or other emergencies are in need of immediate aid”. As such “all persons” is to be read as non-discriminatory. “Illegal acts” are interpreted as all “prohibitions under penal statutes” including those conducted by persons “not capable of incurring criminal liability”. Article 4a of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power obliges states to implement crime prevention policies. The maintenance of public order is an explicit police function mentioned in several principles – as 1 ) See Crawshaw, R., e.a., discussed previously. All in all it is reasonable to expect human rights oriented 1998, Human rights and policing to encompass, as a minimum, all three of these functions. In other policing. Standards for good words: members of the public are entitled to these three services. behaviour and a strategy for change; Rover, C. de, 1998, To serve and to protect; Article 1 of the European Code of Police Ethics. Police Functions 81 ‘Providing assistance’ The Commentary to Article 1 of the European Code of Police Ethics reads as follows2: “The provision of assistance to the public is also a feature of most police bodies, but such functions are more or less developed in various member states. The inclusion of service functions under the objectives of the police is somewhat different as it changes the role of the police from that of being a “force” to be used in society into a “service” body of the society. For some years there has been a clear trend in Europe to integrate the police more fully into civil society, to bring them closer to the public. The development of “community policing” in several member States serves such a purpose. One important means used to do this is to give the police the status of a public service body rather than a pure law enforcer. In order to make such a shift a bit more than a semantic exercise, the service side of the police should be included as one of the purposes of a modern democratic police. Whereas assistance by the police is generally related to speciﬁc situations where the police should have an obligation to act, such as offering direct assistance to any person in danger or assisting persons in establishing contact with other authorities or social services, the service side of the police is more vague and thus difﬁcult to deﬁne. It should not be confused with certain administrative duties given to the police (issuing passports etc). In general, the police as a public service body is connected to the role of the police as a resource for the general public, and easy access to the police is one of the basic and most important aspects in this respect. The service side of the police has more to do with police attitudes towards the public than with giving the police far going service functions in addition to their traditional duties. It is clear that the police cannot be charged with a too heavy responsibility for service functions in society. Member states should therefore establish guidelines for police performance and duties in this respect.” 3.2.2. Operationalizing police functions Many studies have looked at what it is that police ofﬁcers do while on duty to achieve their objectives.3 Three distinct categories emerged: 1. Patrolling: aims to provide assistance to the public, maintain public order and prevent crime. Patrolling means walking, riding or driving around, keeping a close eye on what happens and basically waiting for an opportunity or a request to act. Work may be generated by radio dispatch (following requests from members of the public or from colleagues and superiors). Patrol ofﬁcers are usually deployed in a particular area; patrol teams tend to be geographically organised. 2 ) The European Code of Patrol ofﬁcers usually work in shifts covering 24 hours. In most Police Ethics, Commentary to countries the police are the only State agency that operate 24 hours article 1, p.29-32. a day. This may lead to situations where police take on diverse 3 ) Well known and often cited is: Bayley, D., 1994, Police for tasks including those that are strictly speaking the responsibility of the future. others – police sometimes take care of the mentally disturbed, the 82 Understanding Policing socially deprived and others needing assistance. However, it also leads to the police being ‘omnipresent’, something that can both contribute to people’s sense of security as well as diminish it. 2. Crime investigation: aims primarily to detect crime after it has occurred although it is also expected to have a preventive effect. Criminal investigators (‘detectives’ or ‘CID ofﬁcers’ – CID meaning Criminal Investigation Department), typically working in plain clothes, tend to have a higher informal status within the police, although they do not necessarily hold higher ranks. Criminal investigation departments tend to cover larger geographical areas and tend to be organised according to categories of crime (fraud, vice, juveniles and children, drugs, homicide etc.). Criminal investigators usually work daytime hours. There are various specialist disciplines involved in crime detection, such as forensics, criminal intelligence, surveillance, information-analysis etc. 3. Trafﬁc: aims at trafﬁc related crime prevention and the maintenance of public order. The trafﬁc department usually combines patrolling functions with various sorts of ‘tests’ (testing alcohol usage, safety belts etc.). Apart from that they usually conduct investigations into trafﬁc accidents. Although patrolling is designed to have a preventive effect on crime, the effect in practice is extremely limited. Very often patrolling enables the police to intervene in and potentially pacify situations of conﬂict by using ‘authoritative intervention’4 (authoritative because police can use their powers, even though they do so quite rarely) and thus maintain public order. In fact, in many countries patrolling seems to be primarily used to literally demonstrate State power, especially when patrol ofﬁcers are dressed in combat uniforms and appear heavily armed. It is difﬁcult to make general remarks on this issue as it is also strongly connected to public conﬁdence in the police, as well as to cultural values and historical events. In some countries people appreciate seeing State power as it contributes to their feeling of safety; in others the effect is quite the opposite. The effect is strongly connected to the situation of particular groups, or individuals in society. Some individuals or groups are confronted with being regularly proﬁled by police, or experience regular aggressive confrontations with police (such as the favela communities in Brazil5) and as such will have a different reaction to police presence from those who have not had such negative experiences. This having been said, patrolling in itself is welcome in the sense that it requires police to come out of their stations and compounds and facilitates community contacts. Obviously this depends to some extent on how the patrol is carried out – whether with the intent of instilling fear or trust and conﬁdence. For this reason patrols should preferably take place on foot, whenever possible – rather than in vehicles – as on foot police are, literally, more approachable and less intimidating. 4 ) Ibid. In general, the effect of what the police do to prevent illegal acts is limited. The 5 ) AI, 2005, Brazil: They come in shooting. Policing socially police – both patrol ofﬁcers and criminal investigators – tend to hear of just excluded communities. a small proportion of illegal acts that are occurring. The majority of demands Police Functions 83 on the police (by the public as well as the authorities) relate either to the maintenance of public order or to aid and assistance in emergencies. Still, “the management of law enforcement organizations tends to give priority to the prevention and detection of crime. This emphasis may be perceived as peculiar, given the limited success and effectiveness (…) in this particular ﬁeld. (…) Service to the community, protection of victims and the prevention of further victimization present challenges to law enforcement that appear to have less appeal than the traditional game of cops and robbers.”6 With this in mind it is interesting to note how police agencies spend their resources on the three categories of patrol, criminal investigation and trafﬁc. What percentage of police are working on criminal investigations and how many are on patrol? How many are engaged in community relations functions? If for example 50% are working in criminal investigation – this being a less responsive function of the police – there will be fewer resources for enhancing community relations and developing community responsiveness. Distribution of police resources is also determined by which function of the police is assigned greater importance by the political executive.7 In some countries governments attach greater importance to the functions related to maintenance of law and order compared to crime investigation functions simply because governments feel more threatened by what happens on the law and order front than what happens on the crime front. For example in India, it is reported that police ofﬁcers are regularly withdrawn from criminal investigation work and deployed to law and order duties whenever there is a law and order emergency (in fact this has been a major factor in the advocacy of the separation of law and order personnel from criminal investigation personnel at the police station level in that country). Effectiveness of patrolling Over the years patrolling has increasingly been considered a fairly ineffective way of organizing police capacity. Many police agencies are looking at ways in which they can organize more effectively. This typically means reducing the number of patrol cars to an absolute minimum and having only one ofﬁcer in the vehicle. This is really a mathematical exercise; one can deduce how many cars are needed to cover a certain area while guaranteeing police availability within a certain time period. That way, the costs of policing can be cut down, or police can do other things, such as crime prevention work. Most police agencies also have a Riot Control Unit, or Public Order Unit. Sometimes the ofﬁcers working in this unit come from other departments, 6 ) Rover, C. de, 1998, To serve such as patrol units, and are called upon when needed. In other jurisdictions and to protect, p.146. there are separate, often fairly isolated, Riot Control Units which typically spend 7 ) This notion and the example a lot of time on physical exercise and training. The advantage of the latter of India are based on personal form of unit is said to be the resulting increase in professionalism. However, communication with Mr. G.P Joshi, CHRI, Police Program such units are sometimes seen to be more violent, more prone to using force Coordinator, India. than is strictly necessary as they tend to be more militarised and less familiar 84 Understanding Policing with members of the public, for example when dealing with demonstrations. On the other hand, when local police do deal with crowds and riots, they are sometimes perceived to be favouring particular groups and using too much force against others. It is impossible to identify a preferable model as it is dependant on many factors. In Chapter 5 we will discuss public order management tactics in more detail. 3.2.3. Additional Functions Police are required to perform the three basic functions (maintenance of public order, prevention and detection crime, and providing assistance) but more functions may be added including: • Fire ﬁghting duties • Prison duties • Transport (railway/river etc.) duties • Parking control • Border & Immigration control • Administrative functions (such as issuing passports and permits) • Prosecution functions (usually up to a certain level) • National Security and Intelligence functions • Protection of VIPs As long as these tasks do not conﬂict with one another, are based on law, and do not exceed police authority (as is the case when adding for example military tasks) there is no reason to argue against the addition of more functions. Some of the additional tasks, such as ﬁre ﬁghting, and some of the administrative functions, may actually be of help in improving police relations with the community. Obviously additional tasks should not interfere with the basic police functions and only those ofﬁcials that perform tasks for which special police powers are needed should be authorised to use such powers. There is also a need for appropriate training. Moreover additional tasks should not lead to the withdrawal of (ﬁnancial) resources from basic police functions. In some countries ‘fancy’ functions, such as VIP protection and anti-terrorist brigades, receive relatively large portions of the overall budget at the cost of basic policing functions such as the maintenance of public order and criminal investigation. 3.3. Organizing police functions Though there is agreement on key police functions, there is far less agreement on how the police should carry out these functions. The carrying out of police functions to implement objectives is organized differently in different countries. There are many reasons for this, most notably the country’s history, culture and resources. Formerly colonized countries often adopt the police structure of the former colonizer. Countries with a violent history of coup d’états sometimes prefer small-scale police agencies, whereas countries with a strong centralised system tend to have centralised police agencies under strict central control. In any event, good policing starts with having enough resources, including Police Functions 85 personnel, to do the job. It is impossible to make any deﬁnitive prescriptive statements about how police agencies should be organized and the resources required (with a view to ensuring respect for human rights), nor is it the responsibility of human rights advocates to do so. The information provided in this Section is rather meant to support human rights advocates in formulating an informed opinion in a particular situation. Criminal justice systems around the world The World Factbook of Criminal Justice Systems, developed under the US Department of Justice’s Bureau of Justice Statistics grants, provides narrative descriptions of the criminal justice systems of 45 countries around the world. The original 42 descriptions were completed in 1993. The latest ﬁve entries: Brazil, Colombia, Mexico, Costa Rica and Venezuela were prepared in 2002. The Factbook is available at: http://www.ojp.usdoj.gov/bjs/abstract/wfcj.htm 3.3.1. Centralisation and integration of police functions Some countries, including Malta, Malaysia, and the Russian Republic, have one centralised police agency responsible for all police functions, usually under the Ministry of the Interior, but sometimes reporting to both the Ministry of Interior and Justice. In such agencies all functions are carried out under this one single agency (though in separate departments), all reporting to one central Police Commissioner. However, police functions as discussed in the previous Section do not have to be carried out by the same one agency. In fact many countries have separate agencies for criminal investigation (often called investigative police or judicial police); for the maintenance of public order (often called Patrol Units); police specialised in demonstrations and crowd control (often called Riot Squads or Riot Control Units); and for trafﬁc control (called Trafﬁc Police Departments). These separate agencies tend to have their own separate Commissioners, usually in turn reporting to the Minister or his or her Deputy. Some other countries for example France, Chili and Turkey also have a Gendarmerie Agency, with lines to the Ministry of Defence. Countries with a federal structure tend to reﬂect this in their police organizations. They often have a variety of separate police agencies (Brazil, Argentina) some centralised (federal) some decentralised (state or provincial police) covering different geographical areas. Do note that these provincial agencies sometimes operate in a highly centralised fashion. Other federal countries, including Belgium and the US, have a conglomerate of municipal police agencies, ranging from one ofﬁcer in a small locality to some 40,000 in New York City. And to make things even more complicated, some countries also have ‘administrative police’, often possessing fewer powers and less status and working at a municipal level – usually accountable only at municipal level (e.g. to a Mayor or city council). 86 Understanding Policing Indeed, police are generally organised according to two separate principles: geographically or along functional lines (or a combination of both). Either one of these, or both, can be centralised or decentralised. Most States however tend to have police with quasi-military structures and ranks, typically centralised, with top-down decision-making processes. In a centralised structure ofﬁcers report up the internal line of command, to the highest level (usually the Minister) who in turn reports to the Parliament. In a decentralised structure ofﬁcers tend to have much more freedom to adapt their resources (time as well as ﬁnancial) to local circumstances. As an example, in Russia (a centralised structure), the central government sets the targets ofﬁcers are to meet for all police (investigative departments as well as the uniformed branches) throughout the country and assesses at regular intervals whether they indeed meet their targets. These assessments are typically quantitative, with targets set for ﬁgures and percentages.8 In a decentralised structure, such as the United States, the local sheriff – a locally elected ﬁgure – has great discretion as to what issues to take on and what to ignore. Organizing different police functions in separate police agencies, often with distinct training centres, usually leads to specialisation. This is believed by some to enhance professionalism and quality. However, competition may arise between the various agencies. For example in South Africa since the late 1990s a new law enforcement agency (the so-called Scorpions) has been introduced under the authority of the National Director of Public Prosecutions. The intention behind it was to create a more professional (police) investigation body without the burden of the apartheid past and to encourage investigators to work more closely with the prosecution service in the investigation of crime.9 Better-educated and trained personnel were recruited and they were paid more highly than members of the South African Police Service (SAPS). Their very success and better conditions has created resentment amongst the SAPS and politicians (the investigation of corruption has been a strong focus of the Scorpions’ work). Establishing separate wings of the security forces to deal with particular issues of law and order is also of concern for another reason. These ‘special police units’ tend to place a strong emphasis on achieving certain speciﬁc targets and 8 ) Demos Center for tend to be less regulated than the ‘regular’ police. As they are often separated Information and Research on from regular policing functions, and have less interaction with the public, they Public Interest Issues, 2005, are often found to be responsible for a number of human rights violations. Reforming law enforcement: overcoming arbitrary work practices. Moreover, the existence of more agencies with overlapping functions may 9 ) See AI’s concerns about the complicate accountability as it may make it more difﬁcult to work out which prosecution service in South agency is responsible for carrying out what action. In fact, there are many Africa in South Africa: The countries where it is difﬁcult to know where to report a particular type of criminal justice system and the prosecution of human rights: crime and to know which agency is responsible for what aspects of crime the role of the prosecution prevention and public order. An example is Sudan, where the Positive Security service (1998). (amn al-ijaabi – a security agency with powers to arrest, detain and interrogate) Police Functions 87 10 ) Article 10, Sudan Police and the Popular Police (Shurta Sha’abia – an agency that deals with offences Forces Act, 1999. linked to dress code, public order and drinking alcohol) operate alongside the Sudan Police Forces. These two agencies are devoted to ideological issues. However, the Sudanese police is also tasked to “Preserv[e] ethics, manners and public order, urging for good conduct and preventing the bad and ensuring accountability”.10 On the other hand, multiple agencies may also help to keep one another accountable, thus improving overall accountability. The existence of separate police agencies may lead to some agencies having poor community contacts as some police functions simply involve less contact with communities, e.g. public disorder functions. However, community contacts are essential for all aspects of good policing as the public are major sources of information about crime and overall public order issues. For that reason some will argue that police functions are indivisible and dividing them among separate agencies will always lead to a loss of police quality and effectiveness. A particular disadvantage of separate police agencies reﬂects a typical feature of police culture: police agencies are traditionally unwilling to share information and thus each agency tends to collect their own information. This may result in an excess of data recording (affecting issues of privacy) and duplication (affecting effectiveness). To centralise or not to centralise? Centralisation of police command typically coincides with centralising oversight. In a centralised system police tend to be accountable internally to the next manager in line, the ﬁnal one in line (the Chief Commissioner) being accountable to the Minister or Governor. In a decentralised system the local police tend to be accountable to a Mayor (or other locally elected or appointed ofﬁcial, who him/herself is accountable to the next person in line, all the way up to the Minister). Stated differently, in a centralised system the police are internally accountable with the leadership being externally accountable, whereas in a decentralised system local police management is externally accountable too. Decentralization must be distinguished from delegation. When authority is delegated, the responsibility stays with the most senior ofﬁcial. Decentralising means decentralising authority and responsibility. So, a Police Chief may delegate the authority to decide on how to spend resources to his or her police ofﬁcers as a means of being responsive to communities, but he or she will still maintain responsibility for it. The European Code of Ethics explicitly favours decentralisation of the police, as this is considered helpful in bringing the police closer to the community. However, it should be noted that it is not always necessary to decentralise the entire system. One may very well continue to centralise the administrative functions while decentralising authority and civil oversight. A centralised system has its own advantages: decision-making is more efﬁcient, as is the implementation of new policies and methods. Moreover, whether or not 88 Understanding Policing centralisation is effective also depends on the country’s history and culture in this respect. Some cultures have a history of central authorities issuing orders and directives whereas others are used to placing authority at the lowest possible level. Decentralizing police agencies along geographical lines may help to create agencies that are closer to the communities they serve – though this may in some situations be less cost-effective. An optimal balance ought to be found between decentralization and integration of functions within one agency. For a human rights assessment it is important to include research on all agencies that operate in a country and also to study the laws and regulations (statutory and non-statutory where these are available) under which they operate. Moreover, such an assessment should also include looking at the impact of (de)centralization and integration or specialisation on issues of accountability, resources and effectiveness. 3.3.2. Human Resources In any organization people are the crucial factor in ensuring its success or failure. Police personnel are the prime resource available for achieving police objectives; they are also the most visible as police tend to work in uniforms.11 Having some understanding of how many police are employed within a particular country and how they relate to the people served is helpful when assessing the police from a human rights viewpoint. Recruitment and selection procedures, training (both basic as well as in-service), and procedures for ap- pointments, transfers and promotions are essential elements when discussing personnel issues. These elements will be discussed separately in Chapter 9. 3.3.2.a. Numbers Obviously, in order to undertake basic functions, police need sufﬁcient personnel. However, dictating numbers is difﬁcult. Police/public ratios across countries differ widely: there is 1 ofﬁcer for 178 people in the Czech Republic, 1 ofﬁcer for 280 people in England and Wales, 1 ofﬁcer for 1200 people in Bangladesh.12 A police/public ratio of roughly 1 : 300-400 tends to be common for countries within the European Union. These numbers should be read with caution however, as it is often difﬁcult to establish exactly how many police there are in a given country. For example, police agencies in some countries employ civilian, non-executive, personnel while in others everyone employed by the police, including those performing administrative functions, trainers and those working within human resources 11 ) Article 14 of the European departments, are police (called ‘executive’ personnel). Therefore, in order to Code of Police Ethics states: correctly interpret given numbers of police ofﬁcers it is necessary to identify “The police and its personnel who exactly is included in the ﬁgures and what kind of functions they carry in uniform shall normally be out. When seeking to establish the male/female ratio it is important to keep in easily recognisable.” mind that the percentage of women tends to be higher within the civilian-type 12 ) CHRI, 2005, Police accountability: Too important functions than within the executive ranks, and as such doesn’t say much about to neglect, too urgent to delay. how far the police really reﬂect the people served. Police Functions 89 Another factor relevant to the interpretation of police numbers is how many different law enforcement agencies there are and whether these are included in the ﬁgures. For example, if there are three further agencies possessing police powers which are organized separately from the police – let’s say Border Control, Customs and the Fraud Units – these would have to be included in order to achieve a realistic assessment. Indeed, those possessing police powers are often ‘hidden’ within other organizations – complicating accountability requirements. Ambiguous numbers As an example: The Netherlands has some 16 million inhabitants. Most sources would refer to the country having some 50,000 police employees, resulting in a ratio of 1 : 320. In total some 10,000 ofﬁcers carry out criminal investigative functions. From these 50,000 police some 15,000 are civilian non-police personnel. Some 28% of the entire police are female; however some 18% of the executive staff is female, while women make up 50% of the civilian staff.13 However, in total there are some additional 24,000 people working in other non-police agencies but carrying out policing functions (including in special units, such as Fiscal Investigations, Customs, Social Welfare Investigations etc., but also non-police patrol ofﬁcers). This would bring the ratio to 1 : 216! These 24,000 have the power to arrest, though usually limited to their specialist domain (such as for ﬁscal offences). A few of these 24,000 carry equipment to use force, including some who carry ﬁrearms. From a human rights viewpoint what is important is how many people have special police powers, most notably the power to use force. Another issue is how these numbers are distributed across the country. Amnesty International’s report on Brazil14 refers to the relatively wealthy city of Bauru having 200 ofﬁcers for a population of 100,000 (1 : 500), whereas Jardim Ângela, which includes several favelas (shanty towns) has 37 police for a population of 300,000 (roughly 1 : 8,000). A related issue is where police are based. Again, in Brazil, as in many other countries, police stations tend to be far from the communities they are supposed to serve, further limiting the establishment of community relationships and reinforcing the negative image public and police have of each other. In summary, numbers of police, when available at all, usually do not distinguish between police and ‘non-executive’ personnel and do not reveal whether other agencies (such as security agencies) have similar policing functions, nor do they 13 ) Ministerie van Binnenlandse Zaken en reveal where police are based. It is important to take care when interpreting Koninkrijksrelaties, 2006, numbers. Kerngegevens Nederlandse Politie 2005. 14 ) AI, 2005, Brazil: They come in shooting. Policing socially excluded communities. 90 Understanding Policing Relevant questions for human rights advocates are as follows: • How many staff carry out what policing functions? • How many people have police powers? • How many are armed? • How are these police using their powers?: If the police are oppressive, an increase in numbers means adding to the oppressive machinery, often resulting in an increase in human rights violations. In many countries it may be difﬁcult to retrieve such data. In others it can simply be found on the Internet. 3.3.2.b. Representativeness of police personnel As note elsewhere, the resolution adopting the UN Code of Conduct states that police are to be representative of the communities they serve.15 As a minimum, police ought to be representative in terms of ethnic and religious background and gender. This requirement is not met anywhere in the world. Police all over the world are predominantly male and their ethnic composition is predominantly either that of the ethnic majority or of the ethnic ruling group. The Commonwealth Human Rights Initiative (CHRI) refers to various initiatives that are being undertaken to improve representation in countries as diverse as New Zealand and Sierra Leone. The latter has 15% women in its ranks. South Africa has the highest rate with 29% women within the South African Police Service. On the other side of the range, India is referred to as having only 2% women within the police.16 The fact that police are nowhere truly representative affects good policing: “Lack of racial, religious and regional diversities affects the way routine policing is done, to whom services are provided, how conﬂict is handled and particularly affects the ability of the poor, minorities, women and vulnerable groups to access justice.”17 Certain crimes tend to go ignored or receive little priority, including those crimes that tend to victimize women more than men, such as sexual abuse, domestic violence and women trafﬁcking. All these are under- policed, both because the victims may feel ashamed or be pressured not to 15 ) General Assembly Resolution 34/169 adopting ﬁle charges, but also because of the unsympathetic response victims receive the UN Code of Conduct, 17 when they do report such crimes. Amnesty International has documented Dec. 1979. numerous cases of women being ignored or abused when at the police station 16 ) CHRI, 2005, Police in countries as diverse as Kenya and Afghanistan. In Guatemala Amnesty accountability: Too important International documented police abuse of rural workers in land eviction cases. to neglect, too urgent to delay. 17 ) Ibid., p. 7-8. In Brazil police tend to use excessive force against those living in the favelas. 18 ) See Kenya. Medical Action: All these people are deprived of good policing as their worries tend to go The role of medical evidence unnoticed and when they do address the police they frequently encounter in prosecuting cases of sexual indifference or worse.18 assault (2002); Afghanistan: No one listens to us and no one treats us a human beings. Being unrepresentative not only affects policing ‘outside’ the agency. Internally, Justice denied to women skewed personnel composition often leads to the harassment and verbal abuse (2003); Guatemala: Suspension of police ofﬁcers from minorities and other vulnerable groups within a police of evictions and genuine agrarian policies are the keys agency. The dominant culture is often documented to be extremely unreceptive to solving land conﬂicts; Brazil: to change and harsh attitudes tend to prevail. they come in shooting (2005). Police Functions 91 Training materials produced by the Ofﬁce of the High Commissioner for Human Rights on human rights for police state that representative policing means that police must ensure that their ranks are sufﬁciently representative of the community they serve. Minority groups must be adequately represented within police agencies through fair and non-discriminatory recruitment policies, and through policies designed to enable members of those groups to develop their careers within the agencies. Alongside their numerical make-up, police need to consider the qualitative make-up of the personnel. This means police must have the willingness and the capacity to carry out democratic policing in a democratic political system.19 However, it should be noted that expectations that an increase in the number of women and members of minorities will automatically lead to a decrease in human rights violations is a gross simpliﬁcation. Indeed, research has shown that in some situations new recruits, of whatever background, are quick to adopt the dominant behavioural code in practice, sometimes at the expense of respect for others.20 Police culture tends to be a strong factor that cannot be ignored. Enhancing sensitivity towards diversity may in fact be a more effective way of improving police respect for human rights, than advocating numerical representation. We will return to issues of police culture in Chapter 9; representativeness is also discussed in Chapters 8 and 9. 3.3.3. Financial resources Resources should be sufﬁcient to enable police forces to perform their duties in a professional manner.21 Police should have adequate housing, equipment, means of transportation and uniforms in order to carry out their functions properly and there should be sufﬁcient resources for training new recruits in both theory and practice. Moreover, police are entitled to receive fair salaries and their overall working conditions should accord with international standards. Article 7 of the International Covenant on Economic, Social and Cultural Rights sets out the right of all to enjoyment of just and favourable conditions of work including as a minimum “fair wages” and “a decent living for themselves and 19 ) OHCHR, 1997, Human their families”. The Guidelines for Implementation of the UN Code of Conduct Rights and Law Enforcement: include the statement that “all law enforcement ofﬁcers shall be adequately A Manual on Human Rights remunerated and shall be provided with appropriate working conditions”. In a Training for the Police, para small number of cases, Amnesty International has commented on the salaries 217-218. 20 ) See for example Sandfort, of police ofﬁcers, and recommended that the problem of insufﬁcient salaries T. and I. Vanwesenbeeck, is addressed. Often this is argued on the basis of evidence of widespread 2000, Omgangsvormen, corruption within police, used as a means of topping up meagre salaries. In werkbeleving en diversiteit bij Amnesty International’s report on Timor Leste it is noted that: “The culture of de Nederlandse politie. any police service is closely related to the conditions under which its ofﬁcers 21 ) CHRI, 2005, Police accountability: Too important work and the attention paid to their rights, which in turn affects the way they to neglect, too urgent to delay. are regarded by the community.”22 The report recommends that, “salaries of 22 ) AI, 2003, The Democratic police ofﬁcers should be set at a level such that they are protected against Republic of Timor Leste : A new economic pressures and so as to provide a reasonable standard of living and police service a new beginning, p. 22. reﬂect the important and sometimes dangerous job carried out by the police. 23 ) Ibid., p.23. Salary levels should be regularly reviewed.”23 92 Understanding Policing There should be equal pay for equal work i.e. no differentials based on ethnicity or other factors and salaries should be paid on time (or at least regularly). There should be no need for police to supplement their jobs with other means to raise an income, either through corruption, criminality or through taking on additional jobs, sometimes in private security companies possibly creating tension between the two (e.g. when police start using their police resources – uniform and weapons – for carrying out private functions). Advocacy for improvements in this area may indeed help establish a dialogue about human rights. However, it should be clearly stressed that earning meagre salaries and working under poor conditions can never justify human rights violations – as police are sometimes tempted to argue. Police in many countries face scarce resources and this is often used to justify their limited success in providing security and to excuse human rights violations. In this respect it is worth noting that a General Comment of the Human Rights Committee states that those deprived of their liberty should be treated with humanity and respect for their dignity, a right that “cannot be dependent on the resources available to the State party.”24 Though recognizing the difﬁcult situation in which many police ofﬁcers must operate, it must be clear that a lack of resources can never justify human rights violations by State ofﬁcials. Resources are frequently spent on use of force rather than on means to prevent force such as communication and social skills training aiming to de- escalate conﬂict situations. Indeed, more ﬁnancial resources are no guarantee of human rights oriented policing, as is seen in situations where governments have modernized their police agencies by increasing their mobility and communication and providing them with modern sophisticated weaponry and equipment. In some situations this only makes the task of suppression easier for police agencies. How governments prioritise funding for various aspects of policing, but moreover how they allocate resources for policing within their overall budgets is an important issue. In the current climate, many countries may be prioritising national security and resources for specialist anti-terrorist forces over ordinary policing at the local level. Governments should provide adequate resources for policing, as a means of ensuring the security of their citizens. One important aspect of resourcing is the availability of research into police practice and resulting funding of necessary reforms, including training. In many countries, police agencies have remained unreformed for decades, and government funding for research, analysis and reform appears non-existent. While many non-governmental agencies do carry out research into policing, their calls for reform may go unheard if ﬁnancial resources are not available to fund not only ofﬁcial research but also the reforms themselves. One related aspect to watch for is corruption within the ﬁnancing of policing once budgets are set, how the management of police ﬁnances is overseen and what accountability mechanisms are in place for this. In many instances, 24 ) HRC, General Comment money allocated to certain aspects of policing is routed to other aspects. No.21. Police Functions 93 Corruption Undoubtedly there will always be those interested in inﬂuencing police work. Bribes are easily paid so as to ensure a certain investigation isn’t initiated, evidence gets lost, witnesses intimidated etc. Bribes are easily solicited as well. Indeed, police work is particularly vulnerable to corruption and it may be difﬁcult for ofﬁcers to resist temptations, especially when “everyone is doing it” and salaries are low. Corruption is often deﬁned as the abuse or misuse of an ofﬁcial position for personal gain. In the UN Code of Conduct corruption is understood to encompass the commission or omission of and act in the performance of or in connection with one’s duties, in response to gifts, promises or incentives demanded or accepted, or the wrongful receipt of these once the act has been committed or omitted (Article 7). Corruption can lead to police not doing what they should do, not doing it properly, doing what they shouldn’t do or demanding services (money, sex) for what they were supposed to do anyway or for not doing what they shouldn’t be doing anyway. An example is given in Amnesty International’s report on Brazil where detainees are forced to pay money in order to avoid being tortured.25 Issues around poor salaries and other beneﬁts do appear to contribute to corruption among police but they are usually not the primary cause. Corruption within police services is clearly linked to the issue of accountability in particular, and the manner in which police generally are able to exercise power without being checked. Corruption is closely linked to collusion (with non- police human rights abusers) and the committing of human rights violations traditionally addressed by Amnesty International. Police corruption is often linked to political corruption and political interference. Corruption is a major problem within police agencies all over the world. It affects policing in a particularly damaging way, not only making policing ineffective, but contributing to police turning against the communities they are supposed to serve. It erodes policing in every aspect as it leads to arbitrary policing and ignores the principle of equality before the law. In its worst form it can ultimately lead to police becoming a State within the State: a criminal gang with their own rules and procedures for their own beneﬁt. Corruption undermines the police’s ability to respect human rights with due diligence as other interests (often personal) prevail over the public interest. Article 7 of the UN Code of Conduct states that “law enforcement ofﬁcials shall not commit any act of corruption. They shall also rigorously oppose and combat all such acts.” The UN Convention Against Corruption, adopted by the General Assembly in 2003, elaborates on previous UN documents regarding corruption 25 ) AI, 2005, Brazil: They come and incorporates articles on, amongst others, prevention and criminalization of in shooting. corruption. While there is no generic standard for police resources and material necessary to ensure human rights oriented policing, where possible an analysis of the role of (limited) resources in relation to the ability of police to operate should be 94 Understanding Policing incorporated into any assessment of how the police function. As with ﬁnding out numbers of police personnel, it may be difﬁcult to ﬁnd reliable data on police funding. The World Factbook (referred to above) contains this information for some countries. 3.4. Policing Philosophies Opinions differ on the most effective policing method and which policing method results in better community relations, less crime etc. As is so often the case when it comes to policing it is difﬁcult to deﬁne cause and effect relationships. Crime rates, public safety, public satisfaction and community violence, are only affected by what the police do to a limited extent. The policing philosophy in use (i.e. how the police accomplish their objectives), is strongly connected to the ‘government philosophy’, i.e. with how the State manifests itself with respect to its people. How the police carry out their functions is also based on factors such as the country’s historical, cultural and economic background as well as the expectations of the public. Policing is an ongoing and constantly evolving process: different situations require different types of policing and societal changes will require police to adopt different approaches. To be able to match policing to the context in which they operate, police need to be aware of developments in society and how expectations are changing for example. A policing philosophy may more or less evolve gradually from new working methods adopted; it may also be an explicit choice by the authorities or police management to strengthen public consent or rather to enhance State control. Philosophies and methodologies cannot always be clearly separated as they mutually inﬂuence each other. Various philosophies may co-exist in one country where for example different agencies have adopted different philosophies. Some philosophies – typically philosophies in use in Anglo-Saxon countries – seem to be overvalued at the cost of others. The concept of community policing, for example, referred to in an increasing number of Amnesty International reports, sometimes appears as the ‘panacea’ to all policing problems, as if this indeed is the one best policing philosophy. But is that true? What other philosophies are there? In the next Sections we will discuss different policing philosophies. As community policing is such a dominant philosophy we will pay considerable attention to it. 3.4.1. Crisis policing Crisis policing is deﬁned as “continued repressive policing where ofﬁcers are preoccupied with order and the control of violence.”26 Rather than being a proper philosophy, it is characterised by the lack of it. It is typically seen in countries (sometimes in transition) or regions within countries, which are 26 ) Uildriks, N. & P. van disintegrating or collapsing and where the State risks losing control. Not Reenen, 2003, Policing post- surprisingly, the focus is short term, and based on survival of the State system. communist societies. Police- The UN Code of Conduct requirements that police be accountable, responsive public violence, democratic policing and human rights, and representative of the communities they serve are ignored; police are p.31. force-oriented rather than service-oriented organizations. Police Acts will focus Police Functions 95 on detection of crime and public order control, at the cost of assistance to the public and prevention of crime. Jargon in use reﬂects military rather than civilian principles; as does the way the agency is set up and managed. An example is given in Amnesty International’s report on policing socially excluded communities in Brazil.27 Insofar as these communities, living in the favelas, receive any policing at all this policing is based on containment of the problems inside the favelas rather than contributing to any solution. Police invade poor communities, often using collective warrants discriminating against whole communities at a stroke and are responsible for gross human rights violations including extrajudicial executions. 3.4.2. Authoritarian policing Authoritarian policing usually aligns itself with authoritarian political systems but may survive after transition to a democracy. “Typically, police or the government set policing priorities without consideration of the needs of the population or preferences of the citizens.”28 Police are inclined to act unilaterally and do whatever they consider best. The focus tends to be on controlling the population, rather than seeking a partnership. Authoritarian policing always goes together with centralised systems where rank-and-ﬁle ofﬁcers have little discretion on how to spend their days and local managers have little say in how to spend resources. A subcategory of this kind of policing might be called ‘political policing’, where politicians set the priorities for policing, thus seriously limiting the operational independence of police. Under these policing systems, human rights tend to be considered as an additional burden that place limits on the police. “While some formal legal arrangements may be set up to satisfy international pressures or obligations (…) formulation of human rights standards normally has little impact in reality.”29 Authoritarian policing, being so unresponsive to the public, is seriously hampered by a lack of contact between police and public and thus by access to information. In fact, ‘providing assistance to the public’ is sometimes not seen as a police function at all. As such this kind of police may 27 ) AI, 2005, Brazil: they come in shooting. be perceived by the public as having little legitimacy and may have problems 28 ) Uildriks, N. & P. van upholding accountability norms. Reenen, 2003, Policing post- communist societies. Police- 3.4.3. Community policing public violence, democratic policing and human rights, Community policing can be deﬁned as: “a collaborative effort between the p.32. police and the community that identiﬁes problems of crime and disorder and 29 ) Ibid, p.32. involves all elements of the community in the search for solution to these 30 ) The deﬁnition is from problems.”30 It is based on the assumption that police cannot control crime the Community Policing Consortium and is quoted in and disorder alone but require the support of communities to ensure safety. Community Policing, the past Goals of community policing include: prevention and detection of crime, present and future, Nov. 2004, reduction of fear of crime and improvement of police-community relations. on community policing in the These goals are achieved through three efforts31: US, published by the Police • Community engagement: Executive Research Forum (PERF). · Discussing priorities and strategies with communities 31 ) Ibid. · Mobilizing active assistance of the public 96 Understanding Policing • Problem solving: · A focus on crime prevention rather than crime detection · Studying why people call on the police and trying to tackle underlying causes of problems instead of their symptoms (also known as Problem Oriented Policing, see next Section) • Organizational transformation: · Decentralizing command structures and decision-making, including decisions on expenditure of resources · Developing close cooperation with other parties involved in community safety Building partnerships for problem solving The basic idea of community policing is building partnerships for problem solving. This can be done in various ways for various purposes.32 The most basic form is the improvement of relations between the police and the public to ease mutual tensions. Slightly more progressive is the cultivation of better community relations to control crime. Even more progressive is the active pursuit of popular input and public collaboration to prevent crime and improve police services. The most advanced form being the forging of a strategic partnership between the police and the public, to work towards crime-free communities with high quality of life, in which the decision-making power is shared by both. Community policing is in fact ‘geographic policing’ where police ofﬁcers have a 24-hour responsibility for policing ‘their’ locality. Often community policing means ‘maximal policing’ in that it assumes a greater responsibility for the police than mere crime-ﬁghting. Indeed, police are expected to support overall community well-being and residents’ quality of life. Among the operational elements typical of community policing programs are33: • Police department sponsored neighbourhood watches • Crime prevention newsletters • Crime prevention education for the public • Storefront police stations • Foot patrols • Increased attention to minor offences that are major annoyances to the public • More recruitment from among minority groups 32 ) Wing-Hung Lo, C. and A. Chun-Yin Cheuk, 2004, • Increased education level of the police “Community policing in • Reassignment of certain management tasks from police personnel to Hong-Kong. Development, civilian personnel performance and constraints.” 33 ) WOLA, Themes and debates in public security Community policing requires ‘operational independence’ at the lowest levels reform. A manual for public in the hierarchy as it requires police to be ﬂexible and able to respond to society – Community policing. community needs. This also means that it requires responsibilities for resources Police Functions 97 34 ) Bayley, D., 2001, to be delegated to lower levels within the organization. Community policing Democratizing the police requires a professional, well trained, police, fully understanding their role in abroad: What to do and how to do it, p.25-26. society and able to deal in a responsible way with their increased discretionary powers. Community policing evolved from the notion that the police were lacking consent from the public: “Police tend to believe that the public regards them less well than it does. The primary reason for this belief is that the contacts police have with the public are skewed toward those that are disorderly, criminal, needy or incompetent. In almost every neighbourhood and in every society, there is a suppressed demand for responsive, sympathetic policing. One important way to convince police of this demand is to expand their contacts with the vast non-criminal, non-troublesome public.”34 The emergence and implementation of community policing can have all sorts of origins. In the US, UK and The Netherlands it evolved as a natural next step after ‘traditional policing’. In countries in transition, the implementation of community policing is often used to demarcate regime change and the adoption of democratic values. International donors involved in police reform programs currently invariably require the new police to adopt community policing principles. Unfortunately the concept is often used inaccurately leading to its cheapening and loss of meaning. Practically any policing activity implying any contact with any member of the public has been swept under the umbrella of community policing. Despite this (or thanks to this), it has become the leading policing philosophy of current times. Community or proximity policing? Community policing is interpreted differently in different languages. In Dutch it is called ‘area related policing’, in French, Spanish and Portuguese the term ‘proximity policing’ is often used (‘Police de la Proximité’). It seems reasonable to assume that the guiding principle behind it differs too. The concept used probably also reﬂects the perceived role of the police in society. In general two perspectives can be seen when police decide to engage with the communities. The one reﬂects the ambition of police to be more responsive to the needs of communities and enhance the inﬂuence of the public over police priorities. Police seek to improve service to the community. In the second perspective police intend to engage with communities as it may help them to gain access to information the communities have. Police seek to use the communities primarily as a tactical consideration. Obviously the distinction is never so strict; police will always seek to improve their access to information with the public, and in any democracy police will always understand the need to be responsive to the public at large. 98 Understanding Policing Community policing is sometimes seen as one police function rather than as an integral policing philosophy. This usually leads to isolated ‘community policing units’ within the police, typically focusing on crime prevention and providing assistance to the public. However, when seen as a philosophy, as was intended, community policing is integrated in all aspects of policing, including crime detection and public order management. Indeed, community policing is about changing the perception of the role of the police in society and as such requires fundamental change both within the police agency and outside in its cooperation with other agencies and the public at large. It moves away from the notion of police as the dominant agency carrying out their own agenda or the agenda of those in power. Community policing is sometimes seen as ‘soft policing’, but this doesn’t reﬂect the reality. Crimes are committed in communities by people living in communities. Residents can possess crucial information essential for effective policing. When adopting community policing, police ofﬁcers are still responsible for maintaining order, preventing and detecting crime and providing assistance to the public. Moreover, they maintain their respective police powers including the powers to arrest and detain and the power to use force. Caution should always be exercised in translating practices from one context to another. The very essence of community policing is that it should be in line with the local reality. These vary across countries but also within countries. What works in a suburb of Buenos Aires, doesn’t have to work in Athens or Northern Ghana. Nevertheless, the basics of community policing, encompassing responsiveness to the concerns of the public and the search for joint solutions, are a crucial deﬁning element. Simply organizing police on a local basis is not sufﬁcient to meet the criteria. A number of best practices are described in the vast amount of community policing-related literature available.35 Many Amnesty International reports too refer to small-scale experiments in implementing community policing. The manner in which community policing is put into practice differs immensely. A BBC documentary described the implementation of community policing in one of the favelas in Rio de Janeiro, Brazil. After a public outcry following police brutality, the two prime goals were to re-establish partnerships with the communities and identify problems facing the communities.36 The police commander concerned based his approach on three principles: disarmament (“before community policing can be introduced, the gunmen must be ruled out”), no child offenders, and no internal corruption. An important aspect of the Brazilian case was to bring two communities together: one middle-class and one favela, the former seeking protection from and thus repressive policing against the latter. Addressing this lack of solidarity and lack of understanding was one of the objectives of this project. 35 ) See for example: Bayley, D., 1994, Police for the future. Some countries, including South Africa and Uganda, have so-called Community 36 ) ‘On the Rio beat’, 2001, available at AI’s International Police Forums (South Africa) or Local Councils (Uganda), operating at police Secretariat. station level, in which members of local communities are represented. These Police Functions 99 forums take part in decisions on police priorities and in some instances engage more actively in policing. The local governments of the Local Council structure in Uganda have been given responsibility for, among other things, law and order.37 These structures were introduced after the civil war in order to prevent a law and order vacuum emerging after the old order of local chiefs was swept away. The Local Councils’ duties include mobilizing local communities in law and order matters, law enforcement through the local police, gathering criminal data and running courts. Though these Local Councils have had a remarkable success in preventing the emergence of illegal and informal forms of policing (including vigilante groups) and have managed to achieve some sense of order, they are not without problems. Corruption and a lack of legal knowledge are the most visible of these and have caused frustration within the professional Ugandan police agencies. A community policing project that has gained considerable attention is the ‘Broken windows’ approach of the New York Police Department (NYPD) developed in the mid-nineties. It is based on the assumption that intervening to prevent and stop minor crime will gradually lead to a decrease in major violent crime; if one window is broken, young criminals and others will feel less inhibited to break another. There was ‘zero tolerance’ towards crime with police arresting anyone committing a minor crime. Although crime statistics reportedly showed a decrease in petty as well as serious crime, and the policy reportedly improved some peoples’ sense of security, it also led to some extremely repressive police actions towards certain communities. As reported by the New York Civil Liberties Union, “This racial bias in police practices occurred during a period in which the NYPD had initiated a strategy that involved the aggressive prosecution of so-called “quality of life” crimes.”38 Community policing practices are indeed very varied across the globe and do not always reﬂect the principles as formulated above. An example is provided by Mozambique.39 According to Amnesty International’s understanding, the system of community policing adopted in Mozambique, is led by the Police 37 ) Baker, B., 2005, “Multi- of the Republic of Mozambique (PRM)’s public relations ofﬁce and involves choice policing in Uganda.” 38 ) Testimony by the NYCLU the establishment of Community Policing Councils. The council members are on proﬁling, dated 23 Feb, selected by local community leaders, and the police members selected from 2004. See: http://www.nyclu. lists of volunteers. The members do not receive a salary, but are encouraged org/proﬁling_testimony_ to raise money by running small enterprises. They do not wear a uniform, nor 022304.html. See also WOLA, Themes and debates in public are they authorised to carry arms. Their functions include providing PRM with security reform. A manual for information about criminals, using mediation techniques (including in domestic public society - Community violence cases) and persuading delinquents to change their behaviour. They policing, discussing broken may arrest people under the ordinary powers of “citizens’ arrest” in cases windows and zero tolerance. of ﬂagrante delicto. They work with the police in their respective area. 39 ) The example is taken from a Memorandum AI has PRM representatives have told Amnesty International that the system is submitted to the Government working successfully on the whole. Other observers have informed Amnesty of the Republic of Mozambique International that some communities have said that community policing has concerning police and the given them greater security but that there are also serious problems. protection of human rights in 2005. The Memorandum has not been published. 100 Understanding Policing Amnesty International has recorded a disturbing number of allegations concerning community police agents including: • Bribery and extortion by community police agents, many of whom are unemployed • The use of handcuffs and the carrying and use of ﬁrearms • Arrests of suspects not in ﬂagrante delicto • Use of torture or other cruel, inhuman or degrading treatment or punishment and also reports of extrajudicial executions Indeed, the model for community policing that has been set up in Mozambique has potential for turning into a form of militia as ordinary citizens who are unpaid and untrained have been given authority, endorsed by the police, to exercise some control over their neighbours. As it is important to be able to assess the quality of community policing projects, and to prevent them from developing into militias or vigilantism, we have drafted a list of success factors that can be used for this purpose. Critical success factors of community policing include40: • Community policing needs time; it needs time to establish contacts with communities, especially when initiated in situations characterised by distance and distrust. Moreover, in communities that are heterogeneous it is important to take steps to ensure that the programme is not captured by dominant powerful interest groups or is not affected by caste and communal considerations. • Time means money; it needs adequate funding to retrain ofﬁcers, adapt police stations, transform organizational structures and culture etc. • Community policing requires bottom-up rather than top-down strategizing. Rank-and-ﬁle ofﬁcers are the ﬁrst contacts for communities. Information they have should guide decision-making rather than vice versa. The organizational structure must reﬂect this 40 ) There are many principle. Note that this can become difﬁcult in organizations that publications on community practise(d) ‘authoritarian policing’ and are rather feudal in structure and policing projects. See for example Bayley, D., 1994, ethos. In such situations vertical communication tends to be poor in Police for the future; WOLA, quantity as well as quality and seniors are often unwilling to trust the Themes and debates in opinion and judgement of subordinate ranks. Hence: public security reform. A • Police leadership must be willing to comply with this (bottom-up) manual for public society- Community policing; PERF, principle both in theory as well as in practice. Implementation needs 2004, Community Policing, full support, ﬁrst from the police leadership and then down the past present and future. the hierarchy. Special departments, including detectives, may resist For this list we’ve also used: implementation, as it requires a change in their working methodologies. Wing-Hung Lo, C. e.a., 2004, “Community policing in Therefore implementation needs to be well communicated. Hong-Kong. Development, • Community policing necessitates decentralization of decision-making performance and constraints.”; on priorities as well as on resources. As such: Broeck, T. van der, 2002, • Community policing requires well-trained high quality ofﬁcers able to “Keeping up appearances? A engage with communities and assess their needs and ‘objectively community’s perspective on community policing and the translate’ these into organizational efforts. It does not mean they local governance of crime.” simply do what the public wants them to do! Indeed, high levels of Police Functions 101 corruption and weakly developed professionalism are factors to be extremely cautious of when implementing community policing. • There must be a system for reward and promotion that reﬂects the community policing objectives. Ofﬁcers should be rewarded for their community policing efforts (rather than being named ‘social workers’ or even in some cases ‘nurses’). Evaluation of performance under community policing can be more difﬁcult as the problems faced by police can be more complex. However, measuring the effects of community policing (impact assessment) may be crucial to guaranteeing future resources. Success can best be measured in terms of the police’s ability to effect a change in attitudes and behaviour on the part of both the police and the public, to promote mutual understanding, increase friendly interaction, and ultimately facilitate close cooperation. • Misconduct by police ofﬁcers must be addressed adequately and promptly. Results of (internal) investigations into complaints must be communicated to the relevant communities. • Community policing should preferably be a policing strategy rather than assigned within an isolated unit. However, starting with a separate unit may help to convince those resisting implementation. • Continuity; as implementation of community policing requires ﬁrm and visible commitment of police leadership, this should continue after a change of leadership. New leaders must be willing to continue with policies their predecessors have initiated; rather than embarking on yet another experiment. • For successful implementation, willingness to cooperate by those falling outside the scope of the police is essential as well. These include: · Unions. Though co-operation of the unions is perhaps not essential, their resistance can create serious problems. Countries with police unions should involve these in discussions around implementing community policing. · Politicians and other opinion formers, including the media. When seen as a social experiment, rather than good policing, implementation may result in competition over resources and expectations of what good policing entails. · Other agencies within the security domain. Community policing is not limited to police agencies but rather encompasses an overall security policy. Interagency cooperation is essential; problems that go beyond the police agency’s reach will need addressing by others. Other city agencies may be better equipped to solve certain problems high on the community’s agenda e.g. garbage on the street can be a major nuisance for the public but is not a police responsibility. The responsible agency however may be unwilling to deal with what they perceive to be an outcome of community policing projects and as such not their ‘cup of tea’. As a rule: “If community policing is the 41 ) PERF, 2004, Community Policing, the past present and police department’s program it will fail. Community policing must be future, p.166. the city’s program.”41 102 Understanding Policing · A responsive public! Community commitment must be actively sought and sustained. If communities perceive the police as their enemies, if they distrust the police, if those in the communities are afraid of retaliation from gang members, or if they simply don’t care, they will be hesitant to cooperate. In fact in many countries, many communities, especially those comprised of the socially excluded and economically deprived, will be reluctant to respond to the police’s efforts to engage and will wonder seriously whether cooperation will be in their interest. Establishing trust requires a long-term sincere and consistent effort by the police. In some countries a vocal public supports police practices that involve human rights abuses thus encouraging police to become more repressive. Indeed, community policing may require efforts to raise public awareness regarding human rights principles in general as well as policing practices in particular. The basic all-encompassing success factor is commitment. Police in many countries take on community policing for various instrumental reasons, including as a means of improving community relations, to legitimize police practices (including those that are in violation of human rights standards) and to gain additional funding. Indeed, community policing has gained moral value in itself; regardless of the exact form it is given, thus further eroding the concept and its underlying philosophy. However, community policing should not undermine professional policing. On the contrary, professional policing is a prerequisite. It doesn’t mean the public taking over police responsibilities but rather requires effective cooperation where the public advises the police and helps them ensure and sustain security. 3.4.4. Problem Oriented Policing42 Problem oriented policing (often abbreviated as POP, not to be confused with Public Order Policing) means gathering information about area-related problems instead of investigating a particular crime by a particular offender. “The full POP-approach requires a systematic process of problem identiﬁcation and analysis, followed by appropriate intervention and subsequent evaluation.”43 As such POP requires a long term proactive, rather than reactive, approach. Originally a new working method developed in the 1980s, POP resulted in a radical shift in thinking from ‘offender’ to the ‘overall problem’ and turned into a new philosophy. POP evolved from community policing: cooperating with other community safety partners, such as schools, community centres, housing corporations, civic organizations, etc., proved to be vital in solving those problems that were most disturbing to the public. These were not necessarily restricted to 42 ) Those interested could crimes nor were the police the most obvious agency for solving them. Indeed, look at: http://www.popcenter. peoples’ overall feeling of insecurity can be highly affected by such things as org streetlights not working, garbage on the streets, grafﬁti, youths hanging around 43 ) Hale, C. e.a., 2005, “Uniform Styles II: Police etc. This inter-agency approach is also the main weakness of POP: it assumes families and police styles.” a comparable level of quality across all (State and non-State) agencies and Police Functions 103 entities involved and a neutral ‘professional’ willingness by all of these to tackle problems. Unfortunately the reality is often far from this. Apart from that, cooperation with such a range and diversity of agencies and entities can make it difﬁcult to operate consistent policies. ‘Good’ community policing should adopt a problem-oriented approach: that is, the two should go together. However, “in practice problem oriented policing tends to dominate whereby it is the police who deﬁne the problems to be tackled.”44 POP is ‘easier’ to carry out than community policing as measuring its results is easier and it is not tied to the existence of a community that is clearly deﬁned, has clear expectations and is willing to collaborate with the police. This is also the drawback of POP: it can reinforce the impression that police can solve crime on their own (without cooperating with communities) and conﬁrm the role of the community as a passive one.45 POP in essence is about effectiveness; it is about how the authorities and the police can organize their resources to optimal effect for the beneﬁt of citizens. Every police ofﬁcer understands that in the end it makes no sense to respond to the same calls over and over again without dealing with the underlying problem. As such, POP doesn’t have any disadvantages, other than that it may lead to police taking on too many activities, as with community policing. In times of trouble (high crime rates, public insecurity etc.) this easily turns against the police, typically with politicians and the media starting to question how police spend their resources and how priorities are set, typically ultimately leading to complaints about the police being ‘soft on crime’. 3.4.5. Information/ Intelligence led policing The ‘material’ police work with is information. Information is gathered by the police but by many other agencies and authorities as well. Indeed, in these times of information technology, data-collection, and knowledge management, the police have come to realise that “the acquisition, development and use of information about serious and proliﬁc offenders is likely to be an effective route to the disruption or cessation of their activities.”46 Information may be collected through both open and covert sources as well as through community contacts. Over time, intelligence led policing has evolved to include any police activity that is informed by the intelligent analysis of information. Like POP, intelligence led policing followed from community policing: establishing closer contacts with communities revealed the vast amount of information available. After all, offenders live in communities themselves and for a large part crimes are committed in communities. Improving community relations leads to 44 ) Broeck, T. van der, 2002, improved access to information and as such is a vital precondition for good “Keeping up appearances? A community’s perspective on policing in all its aspects. community policing and the local governance of crime”, Intelligence led policing in essence is also about improving effectiveness. p.169. However, it has some more fundamental repercussions as well. Apart from an 45 ) Ibid. increased volume of information being collected, it can also change the nature 46 ) Hale, C. e.a., 2005, “Uniform Styles II: Police of information collected. The lion’s share of information gathered and used is families and police styles”, p.5. ‘open source’ information, available to anybody. Though there might be strict 104 Understanding Policing privacy rules on data-storage it is unclear what the consequences of collecting all this data are, for example in relation to certain minority groups. Police may become like Security Agencies collecting political rather than criminal intelligence. Especially when police starts using their improved contacts with the communities for political information-gathering this may ultimately lead to a revival of ‘Securitate’-type police agencies. Indeed, community policing using information-led methods can result in ‘two steps back’ rather than ‘one step forward’. The ‘War on Terror’ Obviously the ‘war on terror’ declared in the aftermath of September 11th 2001, is not a policing philosophy. However, it has had an important impact on policing and policing philosophies in many areas of the world. It has brought military jargon (‘war’) to an area of crime – i.e. an area that is to be dealt with by the criminal justice systems including the police. Whereas community policing is very strongly based on the premises of the police being a service to the people, the ‘war on terror’ is a step away from this as it seeks to legitimise the placing of limits on judicial safeguards against abuses of State power. Some countries, especially those with backgrounds in authoritarian policing, readily adopt the vocabulary of the ‘war on terror’, thus justifying authoritarian policing and ignoring legitimate demands for more accountability towards communities. Thus far the ‘war on terror’ has increasingly legitimised the targeting of members of certain groups within society (‘proﬁling’) and made use of police powers without accountability. The ‘war on terror’ seems to have encouraged a redeﬁnition of the human rights framework by some in power, making human rights violations such as torture ‘acceptable’ methods of investigation. At present, positions seem to be polarised, with supporters of the ‘war on terror’ on one side and human rights advocates on the other. In this dichotomy, human rights advocates run the risk of being perceived to defend ‘terrorists’ making it more difﬁcult for them to be effective. Developing a ‘human-rights oriented anti-terrorism approach’ will indeed be one of the major challenges of the next decade. Note that a Section on “terrorism” is also included in Chapter 2. 3.4.6. Concluding remarks on policing philosophies Clearly these policing philosophies are not as neatly separated in practice as is suggested here. Some police agencies have characteristics of crisis policing, even though the countries in which they operate are not in crisis. Many have features of authoritarian policing. It is remarkable how many have adopted the ‘community policing’ vocabulary – though just a small minority have truly adopted the philosophy ‘as intended’. It rather seems to be the inﬂuence of foreign experts and consultants, together with foreign funds, that have helped the community policing philosophy to gain popularity at such speed. Roughly put, one can argue that there are two broad underlying perspectives that underpin the philosophies we have discussed in the previous Sections. The Police Functions 105 one underlying perspective is that of police as an instrument of State control. The assumption being that if States control their territories properly, this will result in ‘law and order’ and will guarantee security for most of the people in their jurisdiction. This ‘force perspective’, or vertical perspective, is clearly seen in authoritarian policing styles. The other underlying perspective is that of police as a service provider to communities in their own areas. This service, or horizontal, perspective is seen in community policing and its derivatives: problem oriented and intelligence led policing (while the latter can also be seen in authoritarian policing). Crisis policing is somewhat separate in that it shows the State’s incompetence in the maintenance of order rather than its competence in fulﬁlling its core obligation of maintaining order. ‘Community policing’ is certainly favoured by human rights advocates for its responsiveness to civil society. The UN Guidelines on Crime Prevention stress the importance of involving communities in crime prevention.47 To stress the importance of responsiveness towards communities, and to avoid semantic discussions about what it is that community policing exactly entails, human rights advocates (including Amnesty International), tend to refer to ‘community- based policing’. Having said that, there are still some dilemmas and difﬁculties with community policing that require attention: • Authorities sometimes implement community policing initiatives by activating communities to police themselves, sometimes leading to situations of vigilantism. It is therefore crucial to always double-check what is meant when police say they have adopted community policing. Indeed: “Community policing may produce a constructive partnership between police and the public in the United States, but in authoritarian countries it can be used for co-optation and top-down regimentation.”48 • Community based policing still suggests there is such a thing as a clearly demarcated community having clear and consistent ideas about what it is they want and willing and able to engage with the police. But what is the community and who represents it? How can exclusion be prevented? What about subgroups that are discriminated against? • A related question deals with how to put ‘serving the community’, or ‘responsiveness to the community’ into practice. How is the community best served? Is simply doing what the community wants enough to serve them? What if the community asks for unlawful acts? As always, police will have to ﬁnd a balance between being operationally independent, forming judgments based on police professionalism, requiring a certain level of public conﬁdence, and listening to communities. In the end it is up to the police, sometimes 47 ) Annex to ECOSOC even up to a single police ofﬁcer to decide what is best. Indeed the resolution 2002/13 adopted 24 main dilemma for community policing is how to balance a neutral (fair July 2002. and impartial) approach with community emotions and attitudes. 48 ) Bayley, D., 2001, • How can one ensure community policing doesn’t increase corruption? Democratizing the police abroad: What to do and how to • Community policing is maximal policing; giving the police a major role do it, p.36. in building and supporting communities, with strong ties to the ‘due 106 Understanding Policing diligence paradigm’ discussed in Chapter 2. However, maximising the police function to include tasks for which police powers are not needed (and for which police are not well-trained) may lead to police growing ever larger thus increasing the number of people being granted the powers to arrest and detain and use force. In fact, such expansion may entail police taking on functions of other governmental agencies, thus blurring the line between them. It also may lead to police taking on too many activities and creating too high expectations amongst the public, ultimately leading to frustration and disappointment. ‘Situational policing’ There is not one best way to police. A recent initiative within the UK aims to develop a model to situational policing in combination with neighbourhood development in which policing philosophy (called strategy) is linked to the crime proﬁle (types of common crime, level of crime, fear level) and social capital of the community (level of trust, informal contacts, formal association) hence seeking an optimal match.49 Though authoritarian policing may appear incompatible with human rights, it does not have to lead to human rights violations as it can be carried out in a professional manner. This depends on the legislation governing policing, the political commitment to human rights, the internal disciplinary procedures and many other factors. When there is political commitment to human rights, and the internal chain of command functions properly, and police are trained adequately and operate under close supervision, authoritarian policing, but in a disciplined way, may in fact be the optimal philosophy for many realities. This is especially the case in contexts with high levels of corruption. Though authoritarian police agencies are in some countries more violent, they are sometimes also less corrupt and therefore ‘preferred’ by the public as the least negative option. This is seen in several countries having several police agencies: the more militarised agencies, typically having more authoritarian features, being centralised and far away from the communities, are sometimes more respected and valued as these are seen as being more reliable and less inﬂuenced by personal or partisan local interests, indeed sometimes at the expense of ‘being close to the communities’ and sometimes even at the expense of being more violent. An example is in India50, where policing is the responsibility of state governments (in a federal structure) and the central government has no original 49 ) Ashby, D.I., 2005, “Policing jurisdiction in police matters. However, a number of central police agencies neighbourhoods: Exploring the exist and can intervene in states (although only when their assistance is geographies of crime, policing requested i.e. when a particular state police force ﬁnds itself unable to deal and performance assessment.” with a situation, particularly a law and order problem, effectively). Generally the 50 ) Based on personal communication with Mr. G.P public are said to place greater trust in these central police agencies compared Joshi, CHRI, Police Program to their own state police forces, as they are seen to be better trained, better Coordinator, India. led and better equipped than the state police forces and what is more they are Police Functions 107 perceived to be more fair and impartial in dealing with law and order problems. Their performance in controlling communal riots for example is generally seen to be less biased than that of certain state police units. These central agencies are more militarised and authoritarian than the state police units. Most of them are armed units and do not normally carry even non-lethal police equipment such as truncheons. To that extent they are more prone to using force or ﬁrearms. They are seen to be less corrupt because they do not carry out normal police tasks that offer opportunities to make money. It is important for human rights advocates to know about the various policing philosophies in use and how these may affect human rights principles such as legality, accountability and responsiveness. The various philosophies can differ quite a bit in relation to the latter two principles. Community policing philosophies by their very nature are (more) responsive to the communities served, and overall are more open to public scrutiny than authoritarian styles. Adherence to the principle of legality is not likely to be strongly affected by the philosophy in use: corruption and human rights violations are seen in all. However the more authoritarian philosophies will often be combined with stricter laws, broadening police powers and lessening accountability mechanisms. The name given by police to the philosophy they use does not always reﬂect the actual working methods practiced. Human rights advocates should be careful not to get involved in semantics and rhetoric about what philosophy to use; nor should they tell the police what system to use. They should rather check on what it is police do in so far as this relates to human rights issues. This means they should rather advocate that police: • Be responsive to and accountable to the communities served • Be representative of the communities served and sensitive to the needs of vulnerable groups within these communities • Combine effectiveness and legitimacy • Ensure all three basic police functions are provided for • Work in compliance with the law including international human rights law and use measures that are proportionate to the ends sought Police should be aware of developments in society and adapt their working methods accordingly with a critical eye on the effects of any changes to human rights. In order to do this, constant monitoring of developments in society and their effects on community expectations with regard to policing is necessary. When police have established good community relations ‘staying in touch’ with society is a logical result. 3.5. Summary In this Chapter we have looked more closely at the police as the prime agency tasked with ensuring security and maintaining order. The police are tasked to carry out three functions. These are: 108 Understanding Policing • Prevention and detection of crime • Maintenance of public order • Provision of assistance to the public Human rights oriented policing requires that the public are provided with all three police functions. To enable police to carry out these functions effectively they need adequate resources. They need sufﬁcient staff that are well trained and reﬂect the communities served. They also need sufﬁcient funding to carry out their functions. There are several policing philosophies in use. Deciding on which is the best one is a difﬁcult if not impossible task. Roughly, policing philosophies either reﬂect the position that police are an instrument of State control, or a service to communities. Though community policing rhetoric sounds as if this philosophy is the most ‘human rights friendly’, in practice this is not always the case. We have listed success factors that can be used for assessing projects said to involve community policing and have suggested that human rights advocates focus on human rights principles such as responsiveness and accountability to the communities served as well as legality. 110 Understanding Policing © Hollandse Hoogte / Martin Roemers The police organization shall enjoy sufﬁcient operational independence from other state bodies in carrying out its given police tasks, for which it should be fully accountable Article 15, The European Code of Police Ethics Operational Independence 111 4. Operational Independence 4.1. Introduction As we have seen States are responsible for the maintenance of order and security within their territories. It follows from the principle of equality (Article 1 of the Universal Declaration on Human Rights) that States are responsible for ensuring security for everyone equally. It is essential that the systems established by States to maintain order and security operate for the beneﬁt of all, rather than seeking to please a few. However, political interference and discrimination in many countries make human rights oriented policing, as part of their overall security and justice systems, extremely difﬁcult (if not impossible). Police need to be able to carry out their functions in a non-arbitrary and impartial manner. In order to achieve this, they require some degree of autonomy. However, this autonomy can never be total as police are granted powers that have the potential to seriously affect people’s rights and could lead to them exercising uncontrolled power within the State. In order to prevent this from happening, police need to be granted a degree of autonomy while ensuring full transparency in what they do. ‘Operational independence’ as it is known, is a complex yet basic characteristic of policing which requires a delicate balance. The existence of too much autonomy may lead to overly violent police actions. Too little may result in police seeking to fulﬁl the partisan (ethnic, religious or other) interests of those in power rather than the interests of all. Readers of this Chapter should refer also to Chapter 8 on ‘Accountability’ given that the issues of operational independence and police accountability are inextricably linked. 4.2. Policing is a political activity The law sets the framework within which police carry out their functions, and priorities for policing are generally set by (local) security policies. In democracies, both laws and security policies are formulated by representatives of the people. As such police are always closely connected to politics. However, law can only prescribe policing to a limited extent. Policing is always, by deﬁnition, a political activity in that it seeks to balance various interests in society. 4.2.1. Vertical perspective: Police and State State institutions are by deﬁnition closely connected to State power and the police is no exception to that rule. Police are the strong arm of the State. They are accountable to the State, depend on the State and must enforce State laws as formulated by those in power (through elections or otherwise). 112 Understanding Policing The State is to serve the public interest. This notion is reﬂected in Article 1 of the UN Code of Conduct for Public Ofﬁcials which states: “A public ofﬁce, as deﬁned by national law, is a position of trust, implying a duty to act in the public interest. Therefore, the ultimate loyalty of public ofﬁcials shall be to the public interests of their country as expressed through the democratic institutions of government.”1 Clearly this is of particular relevance for those State ofﬁcials involved in law and order functions who are granted special powers, such as the power to arrest and detain, and to use force. Having control over these powers is a powerful source of inﬂuence and can easily be misused for other than the public interest. Indeed, in some countries, instead of serving communities, police rather serve the partisan, ethnic, religious, or other, interests of those in power, occasionally resulting in abuse of police powers, obstructing the growth of police as a professional organization and subverting the rule of law.2 Police will generally reﬂect the attitude and values practiced by those in power. If those in power show disrespect for fundamental principles of the rule of law, human rights compliant policing is unlikely to ﬂourish. “Police actions, however “democratic” are not determinative of democratic growth. Indeed: the causal connection runs strongly in the other direction: democratic government is more important for police reform than police reform is for democratic government. Police reform is a necessary, but not sufﬁcient, condition for democratic government. The police tail cannot wag the government dog.”3 That said, for States to carry out their responsibilities effectively and impartially, loyalty of their ofﬁcials to the public interest, as represented by the State, is a precondition. Creating and sustaining such loyalty is not always an easy task. How can States ensure loyalty to the public interest, as required by the UN Code of Conduct for Public Ofﬁcials, instead of the interests of the (ethnic, religious, cultural) group the public ofﬁcial comes from for example? The situation of the police in Basra, Iraq, presents an example of the complexities involved. As described by a New York Times journalist: “Basran politics (and everyday life) is increasingly coming under the control of Shiite religious groups, from the relatively mainstream Supreme Council for the Islamic Revolution in 1 ) The UN Code of Conduct for Iraq to the bellicose followers of the rebel cleric Moktada al-Sadr. Recruited Public Ofﬁcials, adopted by the from the same population of undereducated, underemployed men who General Assembly Resolution swell these organizations’ ranks, many of Basra’s rank-and-ﬁle police ofﬁcers 51/59, on 12 December 1996, is recommended to Member maintain dual loyalties to mosque and state. In May, the city’s police chief told a States “as a tool to guide their British newspaper that half of his 7,000-man force was afﬁliated with religious efforts against corruption”. parties. This may have been an optimistic estimate: one young Iraqi ofﬁcer told 2 ) Goldsmith, A., 2003, me that “75 percent of the policemen I know are with Moktada al-Sadr – he is “Policing weak states: citizen a great man.” (…) “No one trusts the police,” one Iraqi journalist told me. “If our safety and state responsibility.” 3 ) Bayley, D., 2001, new ayatollahs snap their ﬁngers, thousands of police will jump.”4 Democratizing the police abroad: What to do and how to 4.2.2. Horizontal perspective: Police and public do it, p.13. It is a basic human rights principle that the State and its State organs are 4 ) The New York Times, Switched Off in Basra, 31 July to be responsive to the communities they serve. This is reﬂected in many 2005. international standards including the resolution with which the UN Code of Operational Independence 113 5 ) General Assembly Conduct for Law Enforcement Ofﬁcials was adopted which states: “Like all Resolution 34/169, 17 Dec. agencies of the criminal justice system, every law enforcement agency should 1979. be representative of and responsive and accountable to the community as 6 ) Bayley, D., 2001, Democratizing the police a whole.”5 It is also reﬂected in police and human rights literature. In a study abroad: What to do and how reviewing 500 documents on police reform and ‘democratizing the police’ four to do it, p.13-14. The other norms for democratic policing were deﬁned, the ﬁrst of which reads as follows: three are: “Police must give top operational priority to servicing the needs of individual - Police must be accountable to the law, rather than to the citizens and private groups.”6 government - Police must protect human Being responsive to the public does not mean that the police simply carry out rights, especially those that whatever the public wants them to do. It rather entails the police being able are required for the sort of unfettered political activity that to make a fair assessment of what response serves the broad public interest is the hallmark of democracy instead of what serves a particular community speciﬁcally. According to the - Police should be transparent Ofﬁce of the High Commissioner for Human Rights (OHCHR), responsive policing in their activities. ensures that:7 7 ) OHCHR, 1997, Human Rights and Law Enforcement: • Police are responsive to public needs and expectations, especially in A Manual on Human Rights preventing and detecting crime and maintaining public order; Training for the Police. • Policing objectives are attained both lawfully and humanely; 8 ) This is sometimes referred • Police understand the needs and expectations of the public they serve; to as the social contract: and an agreement by the people to delegate certain • Police actions are responsive to public opinion and wishes. responsibilities to the State. The people comply with Maintaining order and providing security is the core function and responsibility national laws and behave in of the State as it is in the interest of all. To achieve the objective of maintaining an orderly manner and accept police intervention when doing order the police and the public are interdependent. Fundamental aspects of otherwise. The police on the any democracy based on the rule of law include that there should be fair and other hand agree to comply humane laws with which the public complies and that the public are in turn with the laws under which they willing to accept the police as (one of the) law enforcement agencies. Thus, operate. 9 ) Peel’s principles can members of the public should be willing to comply with the law and should be downloaded at various accept corrective measures if they don’t.8 This is often referred to as policing websites. by consent. ‘Police are the public and the public are the police’ Sir Robert Peel was the founder of the London-based Metropolitan Police in 1829, reﬂecting the notion of public police. Often quoted are ‘Peel’s Nine Principles’. His seventh principle states “To maintain at all time a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen, in the interests of community welfare and existence.” 9 Policing by public consent serves a further, more operational, goal. Police are dependent on the public for information – such as the reporting of crimes – and their willingness to act as witnesses. As the police are dependent on the public for their professional performance, they should be aware of the legitimacy 114 Understanding Policing 10 ) Mawby, quoted in Marenin they have with the public. Legitimacy “implies that the police are granted (Ed.), 1996, Policing change, some degree of monopoly [to provide security and use force for that reason] changing the police, p.7. 11 ) See for example Davis, by those in society with the power to so authorise,” which can be “the legal R.C. et al., 2004, “A cross- system, the community, the State, the police organization itself or the political national comparison of elite.”10 Different policing models may differ in the bases for their legitimacy. A citizen perceptions of the way to ensure such legitimacy is by being responsive to community needs, by police in New York City and St. Petersburg, Russia.” AI’s showing impartial and professional judgement, and being effective in ensuring 2005 report on Brazil presents security. Moreover, by providing assistance to those in need, police also add an example of different to their reputation. Indeed, police carry out duties for which police powers are expectations people may have not strictly needed so as to ensure public acceptance if and when they are of police actions. See Brazil: They come in shooting. required to use these powers. 12 ) Cavallaro, J.L., 2003, Crime, public order and human rights. Legitimacy is reﬂected in the conﬁdence the public has in the police. Public conﬁdence is a precondition for operational independence and the result of police being effective and accountable. Monitoring public conﬁdence is essential. Obviously, public conﬁdence is strongly inﬂuenced by the public’s perception of the police’s effectiveness in preventing crime and maintaining order. However, being effective as such is never a sufﬁcient parameter to assess the police. Policing compliant with human rights means both effective and legitimate policing. An absence of public conﬁdence due to police corruption, discrimination, police violence, a lack of resources or overall unprofessional behaviour, is a major problem for many police agencies throughout the world. If there is no public conﬁdence the public tends to resort to traditional and informal systems of justice or private security, and vigilantism often ﬂourishes. In many countries police do not carry out their duties lawfully (if at all). In such situations where their legitimacy is compromised and public conﬁdence is weak, police are forced to rely on alternative means for ensuring compliance. This often leads to a vicious cycle with police relying on force to seek compliance, leading to less public conﬁdence, resulting in further police force and so on. Unprofessional policing, for example shown through incompetent handling of a demonstration, often results in overuse of force – which in itself is an example of unprofessional policing. Indeed, bad policing reinforces itself, becoming worse and worse. Public conﬁdence across communities Public conﬁdence can vary across groups and communities. Satisfaction with police is closely related to factors such as poverty and levels of crime. The poorer the area and the higher the crime level, the less satisﬁed people tend to be. Minorities tend to have worse experiences of police than those from dominant groups. There are many reasons for this and academics have for long studied cause-and-effect relations.11 In general, research has found that people want police to be responsive to their needs and be available whenever required. However, in high-crime situations people tend to want the police to be tough on crime and are willing to accept repressive policing – as long as it targets others. 12 Operational Independence 115 Public conﬁdence is closely related to how people perceive police use of force. “Disagreement exists over the larger purpose of police violence in modern society: whether it is needed to control those segments of the population that fail to abide by society’s laws and employ violence themselves, or as an instrument of the State to maintain modern society’s inequitable distribution of resources. This contrast is often exposed when police kill a citizen. Many within minority communities view these incidents as examples of social injustice and oppression, while others view them as the “collateral damage” of police work.”13 4.2.3. Policing is balancing Policing being a political activity is not the same as police always simply doing what politicians tell them to do. The distance between police and their stakeholders must be sufﬁciently far to prevent corruption but close enough to ‘stay in touch’, i.e. be responsive. Police are given their powers by the State, represented by politicians both in parliament and in Ministries, and must ‘earn’ their use from the public. Indeed, policing requires a delicate balance between doing what the public wants them to do, i.e. serving communities; serving those in power who ultimately control the police; and deciding autonomously what should be done to maintain order and ensure safety, i.e. making a professional, neutral, judgement on what to do. The ﬁgure below symbolizes the various interests involved: �� The ﬁgure also shows clearly what lines of accountability there are for the police (to be further discussed in Chapter 8). Police have to maintain enough distance from all parties to be able to carry out their functions objectively and impartially, i.e. professionally, in compliance with (the spirit of) the law. However, they should always work under the authority of the other parties, �� i.e. be accountable to the other parties. Solving this dilemma is one of the fundamental tests for assessing the role of the police in a society. �� 13 ) Smith, B.W., 2004, “Structural and organizational predictors of homicide by police.”, p. 539. 116 Understanding Policing 4.3. Operational independence 4.3.1. Introduction Policing requires a balancing act between the State and the public. Neither simply doing what the State wants, nor simply following the public’s wishes will guarantee policing in the public interest. To ensure (political) impartiality and neutrality, and thus non-arbitrary lawful professional decision-making by the police – in other words to be able to operate in the public interest – police leadership must be authorised (and equipped) to have some degree of autonomy to decide, within the established budgetary and legal framework, how they allocate resources and how they respond to law and order situations. This is known as operational independence. Operational independence presents a fundamental problem from a human rights perspective, yet as stated above, the requirement is inherent in professional policing as opposed to political policing. However, as an armed agency with a degree of autonomy, the police require some form of control.14 Independence is to be limited, both by law and policy (police cannot do whatever they like) and by its co- requirement of accountability. 4.3.2. Operational independence and accountability There should be no police power without accountability. This is why some prefer to avoid using the term ‘independence’ and replace it with the term ‘responsibility’. For example the Patten Commission, responsible for formulating reforms of the police in Northern Ireland in the late 1990s, suggested the use of the term ‘operational responsibility’ rather than ‘operational independence’ so as to underline that police should never escape scrutiny. “Operational responsibility means that it is the Chief Constable’s right and duty to take operational decisions, and that neither the government nor the Policing Board should have the right to direct the Chief Constable as to how to conduct an operation. It does not mean, however, that the Chief Constable’s conduct of an operational matter should be exempted from inquiry or review after the event by anyone. That should never be the case.”15 14 ) Stenning, Philip, 2004, The idea of the political The Patten Commission found that though everyone with whom they consulted independence of the police: agreed on the importance of operational independence, nobody was able to international interpretations present a clear deﬁnition of it nor did they come across a deﬁnition in any and experiences. In this legislation. Article 15 of the European Code of Police Ethics does however report the author discusses how independence and elaborate upon the concept in a clear and sound way: “The police organization accountability relate shall enjoy sufﬁcient operational independence from other state bodies in conceptually as well as in carrying out its given police tasks, for which it should be fully accountable.” practice. Experience with the Commentary to this Article reads as follows: “The police belong to the doctrine in three common law jurisdictions, England and executive power. They cannot be fully independent of the Executive, from Wales, Australia and New which they receive instructions. However, in executing their given tasks the Zealand, are explored. police must follow the law and are, in addition, entrusted with discretion. 15 ) Independent Commission In exercising their powers, the police should not receive any instructions of on Policing for Northern a political nature. Operational independence should apply throughout the Ireland, 1999, A new beginning: policing in Northern Ireland, organization. Such independence is an important feature of the rule of law, para 6.21. as it is aimed at guaranteeing that police operations are being conducted in Operational Independence 117 accordance with the law, and when interpretation of the law is needed, this is done in an impartial and professional way. Operational independence requires that the police are fully accountable for their actions/omissions.”16 For the public and the State to ‘grant’ the police operational independence, police must actively show they are willing and able to account for what �� they have done (a posteriori) and adhere to policies and legislation that were formulated to guide police actions beforehand (a priori). Operational independence should always go together with effective accountability mechanisms. Only then can the police carry out its functions effectively and raise public conﬁdence. The three principles, or concepts, interrelate: • A police agency lacking public conﬁdence is often seen to be unwilling �� to account for its actions �� • A police agency with operational independence but refusing to account, will ultimately erode public conﬁdence • A police agency that is transparent and willing to account will be given more autonomy as people will have more conﬁdence �� 4.3.3. Discretion Operational independence of police leadership translates down to rank-and-ﬁle ofﬁcers as discretion (or discretionary powers). While on duty, a police ofﬁcer typically has great discretionary power and can decide individually which deviant behaviour to act on or not (obviously limited by such margins as laid down in national law and policy). However, some discretion is at the very heart of policing: not every offence is worthy of police action nor is police action always the best solution for a problem. An example of an offence that can lead to multiple police reactions is where a person is speeding beyond the legal speed limit. This is a trafﬁc offence in most jurisdictions and the police can decide to issue a ﬁne. However, they can also decide to give a ‘ﬁnal warning’, which is sometimes more effective than ﬁning. Another example is if vandals had demolished a school building. Police could 16 ) European Code of Police decide to arrest them for this but could also decide to refer these young people Ethics, Commentary to art. for social work; or to have a word with their parents or try to arrange mediation 15, p.41. or another action not involving police powers, nor speciﬁc police skills, nor 118 Understanding Policing being dependent upon penal law. As this example shows, the margins for police to act with discretion are dependent upon the legal system in a given country, the conﬁdence police have with the public and the level of professionalism, in how far they are trained to ﬁnd alternative solutions and/or refer to alternative agencies, or to what degree alternative solutions or agencies are available to them. Code of Conduct of the International Association of Chiefs of Police (IACP) The IACP states: “A police ofﬁcer will use responsibly the discretion vested in his position and exercise it within the law. The principle of reasonableness will guide the ofﬁcer’s determinations, and the ofﬁcer will consider all surrounding circumstances in determining whether any legal action shall be taken. Consistent and wise use of discretion, based on professional policing competence, will do much to preserve good relationships and retain the conﬁdence of the public. There can be difﬁculty in choosing between conﬂicting courses of action. It is important to remember that a timely word of advice rather than arrest – which may be correct in appropriate circumstances – can be a more effective means of achieving a desired end.”17 4.3.4. Threats to operational independence It should be noted that in large parts of the world the police do not enjoy operational independence.18 There are many countries where the type of control exercised over the police results in them being subservient to the political executive, sometimes leading to police inaction where there should be action or action where there should be none. For example in India, where there is a federal system of government, the Police Act vests “superintendence” over the police with state governments. However, the word “superintendence” has not been deﬁned in law, allowing political interference in police work, often resulting in misuse of police powers and leading to violations of citizens’ rights. In some countries, even though superintendence is vested in the head of the police force, it is subject to the directions given by the political executive and these directions are binding and have to be complied with. As an illustrative example, in Nigeria, while the Inspector General of the Police (IGP, who is the 17 ) Download from their head of the police) is charged with the command of the police subject to the website at www.theiacp.org 18 ) The text in this Section, directive of the President, surprisingly enough the President is charged with including the three examples, the operational control of the force.19 The President is also authorized to give India, Nigeria and Uganda the IGP such directions for the maintenance and securing of public safety are based on personal and public order as necessary and the IGP shall comply.20 Another example communication with Mr. G.P Joshi, Commonwealth Human is provided by Uganda, where, according to the Constitution, the “Inspector Rights Initiative, Police Program General of Police shall be subject to and act in accordance with the laws of Coordinator, India. Uganda, except that on matters of policy, the President may give directions to 19 ) Section 9 (4) Nigeria Police the Inspector General”.21 The problem with this provision of the Constitution Act (CAP 359) 1943 refers. 20 ) Section 10 (1) of the Police is twofold. One, there is no cut and dried deﬁnition of what constitutes policy Act refers. matters. Two, the provision does not state that the directions by the President 21 ) Article 213 (4). should be given subject to and within the framework of law. This provision in Operational Independence 119 fact allows an IGP to act in accordance with laws except where he receives policy directions come from the President. There is a similar provision in the Police Statute, but here it is the Minister who may give policy directions to the IGP and the Statute further says that the “Inspector General shall comply with those directions”.22 Another way in which operational independence is eroded is through the power of governments to appoint and remove or transfer senior police ofﬁcials. In many countries the Chief of Police and other senior ofﬁcers are appointed by the government or the head of the political executive and the law is silent about the process or procedures of selection, neither prescribing guidelines for appointment to posts, nor setting down any conditions under which the heads of the police can be removed. As an illustrative example, in Costa Rica it is a constitutional right of the government to remove police leadership whenever they deem it appropriate. In many such situations, it is left entirely to the discretion of the head of the political executive to decide who should head the particular police agency and how long the selected person should remain there. This means that senior police ofﬁcials can remain in their posts at the whim of politicians. It is in the career interests of police ofﬁcials to act in accordance with the wishes of political leaders, even if that leads them to function outside the law. 4.4. Summary Police operate in a complex arena with many competing interests. Simply complying with any one of these interests will never be sufﬁcient for true human rights oriented policing nor will it reﬂect police reality. Police are the strong arm of the State, serving the public interest. To achieve an appropriate balance between State and community interests, police need operational independence to be able to make their own professional judgement in particular situations. Having a certain amount of discretion as to when to use police powers is a practical necessity but this presents the problem of how to control the police. The police must prove they are worthy of enjoying operational independence: they must earn legitimacy with the public by serving the community. Through openness and transparency they can improve their community relations and increase public conﬁdence; a basic precondition for independence. Moreover, police must operate lawfully and non-arbitrarily, and be effective and accountable in what they do. Unfortunately in many countries the reality is far from this, with police lacking the competence to reach professional assessments of situations and the will (or conﬁdence) to account for their actions afterwards. This is often accompanied by political powers seeking to secure their own interests rather than the public interest and unable or unwilling to exercise legitimate and effective, but restrained, control over the police. 22 ) Section 6(2) of the Police Statute, 1994. Police Functions 121 © REUTERS / Atef Hassan OP/AA Part III. Police Powers 122 Understanding Policing Police Powers: Introduction Police can be deﬁned by the powers they hold, most notably the powers of arrest and detention and the power to use force. This is recognized both in international as well as in national law. Police Acts, Criminal Codes and Criminal Procedure Codes as well as so-called Standard Operational Procedures (SOP’s) usually set out these powers and regulate how police are to put them into practice. Any assessment of the police in a given country should therefore always start with a study of these documents in so far as they are publicly available. Typically, the more practical these documents get – SOPs are generally far more concrete and speciﬁc than Police Acts – the more difﬁcult it may be to get hold of them. Sometimes they simply don’t exist on paper. Great caution should be exercised in making any general comments on police powers. Police agencies vary hugely, as do the extent of their powers. Some police carry ﬁrearms, some go unarmed. There are as many examples as there are countries. This Resource Book does not pretend to give a complete overview of police realities. The subsequent three Chapters of this Resource Book focus on those police powers and policing situations that most often lead to human rights violations that are well documented in Amnesty International’s reports. In Chapter 5 we will explore the power to use force; Chapter 6 will look at the powers to arrest and detain and Chapter 7 will look more closely at criminal investigations, with a special focus on the suspect interview. Each of these Chapters follows the same structure. We start with the key principles as given in international human rights standards. We then look at gaps in these standards: what do the standards not say? Subsequently we discuss (best) practices for carrying out a particular police activity lawfully and professionally. Professional guidance The UK based Association of Chief Police Ofﬁcers (ACPO) working in England, Wales and Northern Ireland has an informative website worth exploring where guidance documents and manuals can be found of all sorts of policing situations including the use of force, policing demonstrations, dealing with 1 ) See www.acpo.police.uk domestic violence etc. Less informative regarding professional standards, but (under ‘policies’) and www. with a lot of links to other police associations and organizations is the website iacp.org respectively. of the US based International Association of Chiefs of Police (IACP).1 Police Powers: Introduction 123 The Model Codes Project: Model Codes for Post-Conﬂict Criminal Justice The US Institute of Peace and the Irish Centre for Human Rights2, in cooperation with the UN Ofﬁce of the High Commissioner for Human Rights (OHCHR) and the UN Ofﬁce on Drugs and Crime (UNODC), spearheaded a project seeking to provide tools to assist in processes of legal reform in post-conﬂict states. The tools are a set of codes that focus on criminal law legislation as a means of enabling more effective delivery of criminal justice. The codes – a criminal code, procedure code, detention/prison code and police act – have been developed by a group of some 300 experts from around the world. • The “Model Criminal Code” (MCC) contains general provisions on substantive law, as commonly found in national penal codes, such as criminal liability, grounds for defence, jurisdiction and penalties. It also contains a list of offences in its “Special Part”. The deﬁnitions contained in the MCC are those crimes most commonly found in a conﬂict and post conﬂict environment, and that are frequently missing from national legislation. • The “Model Code of Criminal Procedure” (MCCP) consists of provisions on all aspects of criminal procedure, from investigation to appeal. It also contains provisions on issues such as juvenile justice, extradition and international cooperation, witness protection and redress for victims. • The “Model Detention Act” deals with detention, both pre-trial detention and detention upon conviction. It contains a mix of both general principles and also standard operating procedures applicable to the relevant detention authority including police. • The Model Police Powers Act deals with police powers and procedures outside the context of criminal procedure and includes provisions on issues such as use of force and ﬁrearms and crowd control. The model codes are published in three volumes. Volume 1, published in 2007, contains the Model Criminal Code. Volume 2 contains the Model Code of Criminal Procedure and Volume 3 contains the Model Detention Act and the Model Police Powers Act. All volumes will contain guidelines on how to use the model codes, including how to adapt and tailor them as appropriate to individual countries undertaking legal reform. Publication of Volumes 2 and 3 is expected in 2008. Each book contains a CD on which is an electronic 2 ) See www.usip.org and copy of the book. The books will be posted on the USIP website and can be www.nuigalway.ie respectively. downloaded from there. 124 Understanding Policing © REUTERS / Fabrizio Bensch In the performance of their duty, law enforcement ofﬁcials shall respect and protect human dignity and maintain and uphold the human rights of all persons Article 2, UN Code of conduct for law enforcement ofﬁcials Law enforcement ofﬁcials may use force only when strictly necessary and to the extent required for the performance of their duty Article 3, UN Code of conduct for law enforcement ofﬁcials Police Use of Force 125 5. Police Use of Force 5.1. Introduction Police are typically associated with the equipment they carry to enable them to exercise force – particularly their handcuffs, truncheon and ﬁrearm (though these may vary from country to country). However, most police work does not entail any use of force. There are only a few functions in which some sort of force, or the threat to use force, may be necessary and legitimate to attain a lawful policing objective. These include making arrests, preventing crime and managing incidents involving public disorder. As the use of force against its own people is one of the most extreme measures a State can take there are many standards aimed at limiting the use of State force. At the heart of all these standards is the question of what constitutes legitimate force. Ofﬁcers must make rapid assessments about the nature of the risk as well as the degree of threat involved, and the appropriate way to deal with it while ensuring minimum harm. It is not always clear what exactly is meant by ‘force’ and whether a certain act did indeed contain ‘force’. We will deﬁne ‘lawful force’ as any physical force by police, ranging from open hand techniques to the use of ﬁrearms, to compel persons to act or prevent them from acting, in order to achieve a lawful policing objective. Article 3 of the UN Code of Conduct for Law Enforcement Ofﬁcials (UN Code of Conduct) and the Basic Principles on the Use of Force and Firearms by Law Enforcement Ofﬁcials (hereafter Basic Principles) are the main standards covering the use of force and ﬁrearms for the police. We recommend that the reader familiarise him or herself with the full text of these. Note that exceptional circumstances, such as political instability or a public emergency, may not be invoked to justify any departure from the Basic Principles.1 Note also that both the UN Code of Conduct and the Basic Principles apply not only to civilian police but also to military or state security ofﬁcials exercising police powers. Police sometimes perceive that human rights standards complicate their job without taking the realities of their work into consideration. Policing can be a dangerous job, sometimes requiring use of force. Amnesty International acknowledges this fact – and does not oppose the lawful use of reasonable force – in many of its recent reports, including Amnesty International’s 2004 report, Guns and Policing: Standards to prevent misuse. So do the Basic Principles, stating in the preamble that police perform a “social service of great importance” and acknowledging the dangers which ofﬁcers face in doing their duties. They also emphasise the duty of care in ensuring ofﬁcers’ welfare and 1 ) Basic Principles, Principle 8. providing counselling to those who have had to use force and ﬁrearms.2 2 ) Basic Principles, Preamble and Principle 21. 126 Understanding Policing Guns and Policing sets out a range of reasons for the inappropriate or abusive use of ﬁrearms by police and provides suggestions as to how to counter these.3 The reasons given are: • Lack of accountability mechanisms • Lack of training • Lack of supervision • Lack of professionalism (incl. lacking an understanding of police tactics) • Lack of resources, such as defensive equipment • Poor cooperation between police and the community (resort to force rather than cooperation) • Confrontation of police with particular communities based on discrimination The reasons listed (which are not absolutely exhaustive: for example corruption is also a factor behind abusive use of force and ﬁrearms) could also be used for explaining inappropriate use of force more generally by police. In this Chapter we aim to identify relevant issues when assessing police use of force and ﬁrearms and developing strategies for intervention. In Section 5.2. below, we look at the key principles relating to the use of force and ﬁrearms as set out in international standards. Section 5.3. brieﬂy discusses what the standards don’t say. Police have a range of means of force at their disposal; Section 5.4. discusses some of these in more detail. In Section 5.5. we look at how police can use force and ﬁrearms lawfully in practice, including how they should be prepared as well as what they should once force has been used. Section 5.6. discusses public order management as a particular situation in which force is sometimes required. It points to what the international standards say and what they do not say, and how police can exercise public order management lawfully and professionally. We close with a brief summary. 5.2. Key human rights principles relating to the use of force and ﬁrearms Key human rights principles regarding the use of force and ﬁrearms in general are: • Proportionality: use of force must be proportionate to the lawful objective to be achieved and to the seriousness of the offence.4 In the training of police, special attention should be given to5: · Alternatives to the use of force, including the peaceful settlement of conﬂicts, understanding crowd behaviour, and methods of persuasion, negotiation and mediation · Technical means (including less than lethal weapons and protective gear for ofﬁcers) Proportionality can only be achieved if police have a broad range of techniques 3 ) AI, 2004, Guns and policing. and equipment available to them including self-defence equipment (such as 4 ) Basic Principles, Principle 5. 5 ) Basic Principles, shields, helmets, bullet-proof vests and bullet-proof means of transportation), Principle 20. empty hand techniques and non-lethal incapacitating weapons.6 6 ) Basic Principles, Principle 2. Police Use of Force 127 • Lawfulness: The use of force by police is lawful when it conforms to national laws and police regulations that in turn conform to international human rights standards. Both the objective and the means of achieving it must be lawful. In the preamble, the Basic Principles require States to take the Principles into account in their national legislation and in police rules and regulations on the use of force and ﬁrearms. Its Principle 1 speciﬁcally requires States to adopt national rules and regulations concerning the use of force and ﬁrearms and to keep the ethical issues involved constantly under review. These rules and regulations should include guidelines that7: · Specify the circumstances under which police may carry ﬁrearms and the type of ﬁrearms and ammunition permitted · Ensure that ﬁrearms are used appropriately and with least risk of unnecessary harm · Prohibit ﬁrearms and ammunition that cause unwarranted injury or present unwarranted risk · Regulate the control, storage and issuing of ﬁrearms, including procedures that ensure that ofﬁcers are accountable for the weapons and ammunition issued to them · Provide for warnings to be given, when appropriate, if ﬁrearms are to be discharged · Provide for a reporting system whenever ofﬁcials use ﬁrearms in the performance of their duty • Accountability: To ensure accountability for the use of force and ﬁrearms there must be adequate reporting and review procedures, including: · Incident reports: The UN Code of Conduct requires that a report be made promptly to the competent authorities every time a ﬁrearm is discharged.8 The Basic Principles add that a detailed report must be made “in cases of death, serious injury and other grave consequences” and submitted promptly to the authorities responsible for administrative review and judicial control.9 · Reports of violations: The UN Code of Conduct requires that ofﬁcers report any violation of the Code.10 The Basic Principles put the onus 7 ) Basic Principles, Principle 11. on superior ofﬁcers to do everything in their power to “prevent, 8 ) UN Code of Conduct, suppress or report” unlawful use of force or ﬁrearms.11 Both the UN Article 3. Code of Conduct and the Basic Principles state that police should 9 ) Basic Principles, not be penalized for refusing to carry out violations or for reporting Principles 6, 11(f) and 22. 10 ) UN Code of Conduct, them.12 Article 8. · Effective independent review: The Basic Principles call for an effective 11 ) Basic Principles, review process by independent administrative or prosecutorial Principle 24. authorities whenever a ﬁrearm is used and in every case of death, 12 ) UN Code of Conduct, serious injury or other grave consequences. Victims, relatives Article 8; Basic Principles, Principle 25. or others affected by the use of force or ﬁrearms, or their legal 13 ) Basic Principles, representatives must also have access to an independent process, Principles 22 and 23. including a judicial one.13 14 ) Basic Principles, · Personal responsibility: Following the orders of a superior is no Principle 26. 15 ) HRC, General Comment excuse for unlawful use of force.14 It follows from this principle that No.31, para. 18. police ofﬁcers are personally responsible15 and also that ofﬁcers 128 Understanding Policing should be personally identiﬁable. They should wear nametags or numbers that are clearly visible. • Necessity: Force should be an exceptional measure.16 This means that non-violent means must be tried ﬁrst and force and ﬁrearms should only be used if these “remain ineffective or without any promise of achieving the intended result.”17 “Law enforcement ofﬁcials may use force only when strictly necessary and to the extent required for the performance of their duty.”18 “PLAN” UK police have an acronym for the above four principles: “PLAN”– Proportionality, Lawfulness (or legality), Accountability and Necessity. It is noticeable that the Codes of Conduct of both the International Association of Chiefs of Police (IACP) and the Southern African Regional Police Chiefs Co-operation Organization (SARPCCO) include these principles, as do many national codes. Other general principles regarding the use of force and ﬁrearms include: • Criminalizing unlawful force: Any arbitrary or abusive use of force and ﬁrearms should be a criminal offence.19 Obedience to superior orders is no defence if, in a case where death or serious injury has occurred, the order was manifestly unlawful and the person had a reasonable opportunity to refuse to obey it. The ofﬁcer who gave the order must also be held responsible.20 • Providing assistance after an incident: Ofﬁcers have a responsibility, as soon as possible after the use of force, to provide assistance and medical aid to any injured or affected persons and to notify relatives or close friends of the injured or affected persons.21 • Instruments of restraint: Restraints may be used to prevent the escape of a prisoner or, by order of the prison director and in consultation with a medical ofﬁcer, to prevent the prisoner from 16 ) UN Code of Conduct, Commentary to Article 3. injuring him or herself or others or from damaging property. They may 17 ) Basic Principles, not be applied for longer than necessary. They may never be used as a Principle 4. punishment. Chains and irons may not be used at all.22 18 ) UN Code of Conduct, • Responsibility for developing and deploying non-lethal Article 3. 19 ) Basic Principles, incapacitating weapons: The Basic Principles call for “careful Principle 7. evaluation” of development and deployment of such weapons the use 20 ) Basic Principles, of which should be carefully controlled.23 This appears to place an onus Principle 26. on both the suppliers and the users of weapons to ensure that they 21 ) Basic Principles, Principle 5. minimize the risk to uninvolved persons and that they are responsibly 22 ) UN Standard Minimum controlled. Rules for the Treatment of • Selection and training of ﬁrearms ofﬁcers: The Basic Principles lays Prisoners, Rules 33 and 34. down requirements for the selection, training and testing of ofﬁcers 23 ) Basic Principles, Principle 3. authorised to carry ﬁrearms including in techniques that could diffuse 24 ) Basic Principles, tension and reduce the likelihood of the need to use force.24 Principles 18-21. Police Use of Force 129 And ﬁnally, with speciﬁc regard to the use of ﬁrearms: • Firearms may be used only25: · In self-defence or in defence of others against the imminent threat of death or serious injury · To prevent the perpetration of a particularly serious crime involving grave threat to life · To arrest a person presenting such a danger and resisting their authority · To prevent his or her escape and only when less extreme means are insufﬁcient to achieve these objectives. Intentional lethal use of ﬁrearms may only be made when strictly unavoidable in order to protect life, a situation that will be rare in civil policing. Police must identify themselves and give clear warning of their intention to use ﬁrearms, with sufﬁcient time for the warning to be observed, except when doing so would place the ofﬁcers or others at risk of death or serious harm or if it would be clearly inappropriate or pointless in the circumstances.26 The commentary to Article 3 of the UN Code of Conduct adds that every effort should be made to exclude the use of ﬁrearms, especially against children. Subsidiarity The principle of ‘subsidiarity’ requires that ofﬁcers adopt the least intrusive approach and the least damaging to a suspect’s rights. This principle (meaning subordinate, supplementary or auxiliary) may be used in relation to the PLAN principles, particularly alongside the principle of “necessity”. A simple example: An ofﬁcer is confronted by an individual with a knife. It is necessary to disarm the individual. It may be possible for the ofﬁcer to say “drop the knife” and if the individual obeys, there is no need to use force. The point of subsidiarity is not whether an action is necessary, but whether that particular way of carrying it out was necessary. This does not mean that the ofﬁcer has to exhaust all subsidiary options ﬁrst if there is an imminent threat or danger. 5.3. What the standards don’t say The standards cannot, and do not, cover every aspect of policing. Hereunder some gaps are listed: • They do not deﬁne ‘force’ or ‘ﬁrearms’ • The Basic Principles on the Use of Force and Firearms do not specify how they should be implemented in practice nor do they give guidance on tactics • Proportionality is not deﬁned; nor is ‘imminent threat of death or 25 ) Basic Principles, Principle serious injury’ deﬁned: when is a threat imminent? 9 of which builds on the • They make no reference to open hand techniques, i.e. techniques not Commentary to Article 3 of the requiring equipment, or deﬁne what constitutes ‘less than lethal’ UN Code of Conduct. 26 ) Basic Principles, weapons Principle 10. • They do not deﬁne what is meant by the need for continuous and 130 Understanding Policing thorough training and the need for periodically reviewing police ofﬁcer’s ﬁtness for carrying out police functions, nor do they explicitly relate this to the particular use of force • The standards do not identify means of restraints that might involve a signiﬁcant risk to life.27 It is left up to national legislatures and police authorities to establish regulations to cover these areas • It is left up to national legislatures and police authorities to establish regulations for the use and storage of weapons These gaps mean that national police agencies are required to develop standard operational procedures covering: • Deﬁnitions of the terms used, for example “ﬁrearms” • What types of force and ﬁrearms may be used • Precise circumstances in which these types of force and ﬁrearms are to be used • Responsibilities following the use of force and ﬁrearms including detailed reporting responsibilities • Management roles at different levels and systems for responding to incidents in which the use of force may be necessary • Qualiﬁcations required in order for ofﬁcers to be authorised to carry and use a ﬁrearm • Speciﬁc rules and techniques for avoiding the need to use force • Provisions for issuing, storing and transporting weapons • Provisions for ensuring continuous training in the use of force and ﬁrearms 5.4. Types of force 5.4.1. Introduction As noted before, police should have access to a differentiated range of police equipment with which to apply appropriate minimum force in a variety of circumstances – as required in the UN Basic Principles. Only then can police start at the lower end of the ‘scale of force’ and gradually increase force depending upon the situation; thus preventing excessive force and facilitating the use of proportionate force. Types of police force can vary immensely and include: • Police presence itself as a deterrent (obviously this is not a means of force as such, but may help to prevent subsequent resort to force) • Verbal instructions 27 ) AI has called for a ban on • Open-hand techniques, such as a raised open hand or pushing speciﬁc restraint techniques, someone back with the palm of the hand particularly those which can • Hard empty hand techniques, such as holding someone’s arm behind lead to “positional asphyxia”. the back AI – Netherlands, 2004, • Body impact (pushing) Amnesty International’s recommendations on policing. • Handcuffs or other restraints A review and guide, p.25. • ‘Pepper’ or OC spray, tear gas Police Use of Force 131 28 ) AI, 2003, The pain • Sticks, batons, truncheons merchants. • Electro shock weapons 29 ) Bailey, W., 1996, “Less- • Baton rounds or rubber bullets than-lethal weapons and police-citizen killings in US • Water canon urban areas.”. • Dogs 30 ) AI, 2001, Trading in terror: • Firearms Military, police and security transfers. Many of these techniques are discussed in Amnesty International’s 2003 report The Pain Merchants: Security equipment and its use in torture and other ill-treatment28 and in Guns and policing. Amnesty International-Netherlands’ 2004 publication Amnesty International’s recommendations on policing: A Review and Guide lists recommendations the organization has made relating to these means of force used by police ofﬁcers. Some of those listed are lethal, most notably ﬁrearms. Other means are referred to as being “less than lethal”, stressing that, although intended for use by police as a last resort instead of lethal force, they can have lethal consequences. Moreover, their abuse can amount to gross human rights violations. In practice these less than lethal devices are sometimes used in the ﬁrst instance, rather than as a last resort. “Less than lethal” weapons Amnesty International uses this term for weapons other than guns. Other terms used by police agencies are “non-lethal” or “intermediate” weapons. The term “less than lethal” was adopted in view of the evidence that many of the weapons placed in this category have the potential to be lethal. Principle 2 of the Basic Principles encourages the development of “non-lethal” weapons in order to decrease the risk of death or injury inherent in the use of ﬁrearms or other potentially lethal weapons. Principle 3 recommends that “the deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.” “Non-lethal” riot control devices such as water-cannon, plastic and rubber bullets, and chemical agents such as pepper spray and tear gas, can result in serious injury and even death. Many of these weapons, including their medical effects, have not been independently assessed and some remain inherently open to misuse. An independent study on the effects of less-than- lethal weapons on police killings found that the availability of chemical agents and restraining devices, associated with reducing police killings, had no such effect.29 Amnesty International calls on governments to introduce strict guidelines on the design and use of such equipment and to set up adequate monitoring mechanisms to ensure that the guidelines are kept under review and adhered to.30 Here we will only give a brief explanation of some types of force. For further information we refer to the respective documents. 132 Understanding Policing 5.4.2. Restraint techniques/equipment Handcuffs are the most common restraint equipment police have. Used properly they are used to tie the wrists, in front or behind the back. Handcuffs can also be used to tie some people together. Sometimes handcuffs can be used to tie the ankles. Restraints should never be used for punishment and the use of chains and irons, such as shackles, on prisoners is prohibited.31 The use of restraints should never amount to torture or ill-treatment. Various speciﬁc methods of restraint employed by police have been referred to in Amnesty International’s documents, including neck-holds, hogtying, mouth restraints (sometimes used on deportees), sedative drugs and handcuffs. Generally, Amnesty International has called on the authorities to review restraint techniques used by law enforcement ofﬁcials, outlaw those involving a signiﬁcant risk for life and in particular to ensure regular and repeated training about the dangers of “positional asphyxia” which is a particular danger during restraint.32 5.4.3. Irritant sprays Two of the most used, and most known irritants are: • Pepper Spray / Oleoresin Capsicum (OC) Spray Pepper spray, used at closed range, is sprayed in the face to temporarily disable someone posing a threat or heavily resisting arrest, in order to avoid greater means of force. In relation to the US, Amnesty International has recommended that the federal authorities establish an independent review of the use of pepper spray by law enforcement agencies and that police departments that authorize the spray should introduce strict guidelines and limitations on its use, with clear monitoring procedures. • Tear Gas Tear gases are permissible in safe mixtures for domestic law enforcement purposes in riot control situations to prevent or counter collective violence, for example to disperse assemblies posing an imminent threat of serious injury. In conﬁned spaces tear gas should not be used indiscriminately.33 However, Amnesty International has documented cases where teargas was unlawfully used against non-violent protesters not posing any threat to property or the police, including the ﬁring of tear gas directly at individuals and directly into private property for no apparent reason.34 31 ) UN Standard Minimum Rules for the Treatment of Prisoners, Rule 33. Any possible use of irritant sprays aimed at temporarily disabling an individual 32 ) See for example AI’s must be subject to strict guidelines and limitations on their use. Irritants 2002 report, United States cause pain and must be used in very limited and controlled quantities and of America: AI’s concerns on police abuse in Prince George’s situations. Their use should be evaluated and monitored. Amnesty International County, Maryland. campaigns for rigorous independent investigations to assess the risk to human 33 ) AI, 2004, Guns and rights of law enforcers using such devices and calls for such research to be policing. published in open scientiﬁc journals for public scrutiny before governments 34 ) AI, 2001, Canada: Amnesty International calls for public authorize the use of such equipment by security forces. In The Pain Merchants enquiry into alleged police a list of types of irritant sprays is provided. brutality. Police Use of Force 133 5.4.4. Rubber bullets and plastic baton rounds Plastic bullets are used to inﬂict pain and disable someone at a distance posing a serious threat and/or trying to escape. Plastic baton rounds, rubber bullets and rubber-coated steel bullets are potentially lethal weapons that also have the capacity to inﬂict cruel and inhuman suffering. In The Pain Merchants Amnesty International expressed concern that credible reports from different parts of the world point to security forces using rubber bullets as weapons of ﬁrst resort, rather than as the last step before the use of live ammunition.35 The manner and context in which plastic bullets are used, as well as the rules of engagement under which they are used, needs careful consideration. The absence of identiﬁcation markings in plastic baton rounds, rubber bullets, bean bags et al, and therefore the impossibility of carrying out a forensic ballistics investigation to ascertain which ofﬁcer pulled the trigger, and in what circumstances, poses another problem. 5.4.5. Electro-shock weapons Tasers are hand-held electronic stun guns that ﬁre two barbed darts up to a distance of seven metres, which remain attached to the gun by wires. The ﬁsh hook-like darts are designed to penetrate up to two inches of the target’s clothing or skin and deliver a high-voltage, low amp, electro-shock along insulated copper wires. Amnesty International’s 2004 report on the use of tasers in the USA includes an overview of the distribution and deployment of tasers per country.36 Though electro-shock weapons may result in less use of lethal force, Amnesty International has documented tens of examples where people died after having been subjected to electro-shock weapons and hence calls for the equipment to be treated in line with requirements for lethal instruments.37 However, most agencies using taser guns in the USA still place them well below the deadly force level. In some agencies the use of these electrical weapons is allowed if a person does not comply with an ofﬁcer’s demands. In 2004 Amnesty International called for tasers to be “rigorously and independently investigated to ascertain their compatibility with human rights standards before being authorised for use by police forces”. In 2006 the organization stated: “pending the results of a comprehensive, independent and impartial medical study, AI is reiterating its call on all police departments and authorities to suspend their use of tasers or strictly limit their use to deadly force situations as deﬁned under international standards. Strict guidelines and monitoring should govern all such use.”38 Amnesty International has similar 35 ) AI, 2003, The Pain Merchants. concerns about a range of stun guns.39 36 ) AI, 2004, USA: Excessive and lethal force? Amnesty Amnesty International has also recommended a ban on the use of remote International’s concerns about control electro-shock stun belts.40 These belts are strapped around a prisoner’s deaths and ill-treatment involving police use of tasers. waist and operated by guards through remote control. The belts deliver a 37 ) AI, 2006, USA: Amnesty 50,000 volt shock through the kidneys for 8 seconds. In the USA these belts are International’s continuing used during the transportation of prisoners as well as during judicial hearings. concerns about taser use. 38 ) Ibid (summary). 39 ) AI, 2003, The Pain 5.4.6. Use of dogs Merchants, Chapter 4.2. Dogs may be used to chase an escaping suspect, defend the handler and/or 40 ) Ibid. Chapter 4.1. itself against attack, disarm a suspect armed with a ﬁrearm or other weapon, 134 Understanding Policing guard and escort suspects after arrest. They can also be deployed as a deterrent in situations of general disorder, such as a rowdy crowd of football fans or in an offensive role, for example behind police armed with batons, to be used if these fail to reach the police’s objective. Dogs should be kept in the background until required; warnings should be given before they are released and the PLAN principles apply. The handler is ultimately responsible for the dog. Note that the use of dogs is to be regarded as a ‘heavy’ means of force.41 5.5. How to use force lawfully 5.5.1. Introduction Police responses must be lawful, necessary and proportionate. The police agency, as well as individual ofﬁcers, may be called upon to account for their actions. They will need to show that any force used was necessary and proportionate on the basis of their honestly held belief based on the information or intelligence available to them. Amnesty International has made many recommendations on the use of force in a variety of situations, such as whether to effect an arrest or disperse an assembly, as in practice use of force often violates the principles of proportionality and necessity.42 Professional standards have been developed at national level and disseminated through international cooperation and in training. There are regional codes of conduct (e.g. Council of Europe, Southern Africa) but none (that we know about) have detailed codes on the use of force and ﬁrearms. National codes do of course exist. Deciding whether the force used was indeed proportionate is not always easy. Moreover, who will decide whether the use of force or ﬁrearms was arbitrary and excessive? The police are usually the ﬁrst people to reach the spot and remain there until they have controlled the situation. Deciding on the use of force is therefore very much at their discretion (within the limits of the law). They will give their own version about the circumstances of the situation that required the use of force and the amount of force used by them. Unless a judicial inquiry is instituted into the use of force by the police or until an independent investigation is conducted, it may not be possible to ﬁnd out if the use of force was arbitrary or abusive. In some countries there must be a mandatory judicial inquiry into any instance of death or grievous hurt caused while in police custody and death resulting from police ﬁring in the dispersal of an unlawful assembly.43 41 ) ACPO Police Dog Training and Care Manual, October 5.5.2. Tactical considerations when using force in police practice 2002. 42 ) AI – Netherlands, 2004, In order for force to be used according to the PLAN principles (referred Amnesty International’s to above), the law needs to be in accordance with these principles and recommendations on policing. police need to know the law. Within this legal framework police can make A review and guide. tactical decisions on what type of force to use in what situation and for 43 ) Based on personal what objectives. In general police should try to avoid using force. However, communication with Mr. G.P Joshi, CHRI, Police Program sometimes the use of force can be foreseen and prepared for. If it is known a Coordinator, India. demonstration may get out of control, local authorities may decide to prohibit Police Use of Force 135 the demonstration for reasons of public order; this principle is laid down in several articles of the ICCPR (see also Chapter 2). Sometimes it can help to prevent force if the police are ‘visibly present’. Sometimes this will have a contrary effect and result in escalation of the situation. It is therefore crucial for the police to gather intelligence for risk-assessment purposes. In any event, use of more extreme measures of force is usually to be authorised beforehand by a higher (judicial) authority. Even when the use of force is lawful, it is not always tactically the right thing to make use of all means of force available. Consider a situation where police are called upon to restore peace to a bar where drunk and aggressive individuals are involved in a ﬁght. Police may be legally permitted to use force to stop the ﬁghting, however, they may very well consider it wiser to protect the innocent people present and let those ﬁghting get rid of their adrenalin ﬁrst, thereby preventing further escalation and unnecessary damage and injury (on both sides!). Another tactical consideration that relates to the use of force is how police are equipped, both in general and in speciﬁc situations where the use of force can be anticipated. The term ‘equipment’ includes both weaponry and self-defence equipment (including bullet-proof vests), but also other means of force that they can call on (dogs, horses etc). Perhaps an even more important tactical consideration is the type of communication equipment available to police. Police sometimes resort to excessive force because they see no other alternative: for example when they are unable to communicate with each other because of lack of proper equipment. The Association of Chief Police Ofﬁcers (ACPO) guidelines (in the UK) state, “In deciding whether the action was ‘necessary in a democratic society’ it will be necessary to show that the action: i fulﬁlled a pressing social need, and ii pursued a legitimate aim, and iii reﬂected a reasonable relationship of proportionality between the means employed and the aim pursued. This means that the action was designed to: a. impair as little as possible the right or freedom in question b. meet the objectives of the domestic law in question and c. not to be arbitrary, unfair or based on irrational considerations, and d. to be balanced against the severity of the effect that the measure has on the individual or group. The more severe the adverse effects of the measure, the more important the object must be if it is to be classiﬁed as legitimate.” 44 The ACPO Manual of Guidance on Police Use of Firearms lists factors that 44 ) ACPO Manual of Guidance must be taken into account when selecting weapons appropriate to the tactics on Keeping the Peace, p 17. employed in a speciﬁc operation: 136 Understanding Policing • The level of force required to meet the threat • The type of situation to be dealt with • The likely distance between the armed police ofﬁcers and the threat • Information received as to the weapon/s used by any armed subject • The operational environment • The training and experience of the ofﬁcers involved.45 Police make tactical decisions within the legal framework in which they operate. Obviously they also need to know how to implement those decisions properly and in accordance with international human rights principles. Knowing how to use force includes knowing about alternatives to the use of force. If police know of no other intervention than violent techniques, the use of excessive force is more likely to occur. Moreover, if police know they will ‘get away with it’, they will be inclined to choose the easiest solution, which force is often perceived to be. Readers should be aware that in situations where civilian possession and abuse of ﬁrearms is out of control, police can face enormous difﬁculties in protecting the public. In such situations applying non-violent means before resorting to force and ﬁrearms may become de facto obsolete.46 5.5.3. Selection, training and qualiﬁcation of ofﬁcers Ofﬁcers dealing with violent incidents should be selected according to strict criteria including their physical ﬁtness, emotional strength, capacity for team- work and co-operation, decision-making under pressure etc.47 Training should incorporate how to assess a situation and how to respond proportionately. However, in many countries, training in the use of force is completely absent or is restricted to general sports training, including some ﬁghting techniques. Moreover, training in the use of ﬁrearms in many countries simply consists of training in how to load, aim and ﬁre a weapon. Such training is clearly inadequate. Adequate training should cover all potentially dangerous situations. Moreover, it should include instruction in how the use of force can be avoided. Indeed, training in social skills, including dispute resolution and other de-escalation techniques, is an essential element of such training. Training must not only 45 ) ACPO Manual of Guidance include theory but also practice in simulated real-life situations on how to on Police Use of Firearms, p.13. make decisions, and to account for them afterwards, so as to adhere to PLAN 46 ) AI, 2003, Shattered lives. principles. This kind of training should be provided at all levels of the police and 47 ) European Code of should be as close to reality as possible.48 Completion of training must be a Police Ethics, Article 37 and prerequisite for carrying ﬁrearms.49 Once trained, ofﬁcers should have to keep Commentary. 48 ) European Code of their certiﬁcates up to date by undergoing regular tests.50 Ofﬁcers should have Police Ethics, Article 29 and to show that their qualiﬁcations for a certain weapon are up to date before Commentary. being issued with that weapon. See also Chapter 9. 49 ) Basic Principles, Principle 20. 50 ) Basic Principles, 5.5.4. Use of ﬁrearms Principle 18. Use of ﬁrearms is usually deﬁned as pointing or ﬁring a weapon, not simply Police Use of Force 137 carrying one. Firearms include handguns, revolvers, self-loading pistols and carbines ﬁring handgun ammunition at short range, and riﬂes and carbines using riﬂe ammunition for long-range use. Guns can be semi-automatic or automatic. In general there is no occasion in ‘normal policing’ for the use of automatic guns – though police in quite a few countries do carry them. Readers should note that police usually use lower velocity weapons than military because their tactical environment substantially different. “Police operations occur at much closer range than military engagements because of the need to identify whether a threat to life is being made or not and to ensure the safety of the public.”51 Police commanders may give authority to use ﬁrearms, but it remains the responsibility of each individual ofﬁcer to ensure that he or she is acting in accordance with the PLAN principles. A clear verbal warning of intent to use ﬁrearms should be given and the subjects given time to obey police orders. No warning is required if it would be inappropriate or pointless in the circumstances. Warning shots, including ﬁring in the air, are rarely effective and can cause collateral damage. They may also lead the subject/s or other ofﬁcers to believe that they are under ﬁre. Some police agencies forbid warning shots (Amnesty International does not have an established position on this).52 Firing at moving vehicles in which an armed suspect is travelling is pointless and dangerous. Pursuit is advised or, if necessary, a total road-block. In any case, road safety must be a primary consideration.53 Amnesty International has documented many examples where police have shot individuals in response to ‘resistance’. For example, the organization’s 2005 report on Brazil54 documents a number of examples of ‘resistance followed by death’; a common phrase in many countries. In Mozambique being ‘shot while trying to escape’ is a recurrent phenomenon.55 Similarly, Amnesty International’s report Guns and Policing refers to police stating that victims of police shootings ‘got caught in crossﬁre between police and criminals’. The 51 ) AI, 2004, Guns and report also refers to police in Jamaica making “remarkably uniform statements” policing, p. 27. about people behaving suspiciously who, when challenged, produced ﬁrearms 52 ) Note that the European Code of Police Ethics, in the and opened ﬁre on police ofﬁcers who returned ﬁre and killed them.56 While Commentary to Article 37 shooting to kill is not necessarily unlawful, the action of shooting must clearly states “shoot to warn before be in line with relevant international standards referred to above. Under shoot to wound”. international law any accidental shooting is required to be investigated. However, 53 ) ACPO Manual of Guidance on Police Use of Firearms, p. in practice, investigations are rarely carried out. Police employ excuses as a 5-6 para 9.18. means of avoiding investigations and thereby create effective impunity. 54 ) AI, 2005, Brazil: they come in shooting. Caution is warranted when police shootings invariably result in casualties 55 ) AI, 2000, Mozambique: Suspected extrajudicial amongst the public, typically combined with relatively low numbers of police executions: Tomás Paulo José casualties. After all, if there are so many shoot-outs, there would be police Nhacumba and Gildo Joaquim casualties. In Amnesty International’s report on Brazil the so-called ‘lethality- Bata. index’ is presented as a measure to assess whether lethal force has been 56 ) AI, 2004, Guns and over-used. This index is the ratio between those injured and those killed by a policing, p. 14. 57 ) AI, 2005, Brazil: they come police force. When many are killed in police operations, this suggests police are in shooting, p. 41. over-relying on lethal force; attempting to kill rather than arrest.57 138 Understanding Policing On most occasions when police use ﬁrearms, the use of lethal force intentionally would be disproportionate. Indeed, some national standards on the use of ﬁrearms require police to target ‘non-lethal’ parts of the body. Police shoot to kill? In principle police are not meant to shoot to kill. There is no provision in international law for “shoot to kill” policies but the Commentary to Article 3 of the UN Code of Conduct notes that every effort should be made to exclude the use of ﬁrearms. Shooting to kill is only lawful when it is carried out as a last resort to protect life (i.e. in self-defence or in defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, to prevent his or her escape) and only when less extreme measures are insufﬁcient to achieve these objectives. All law enforcement agencies should be guided at all times by the principles of necessity and proportionality when using force. Every effort must be made to apprehend rather than kill – lethal force must never be used as an alternative to apprehension. Amnesty International recently made recommendations to the UK government following the fatal police shooting of a man, wrongly thought to be a suicide 58 ) In 2005 AI urged an bomber, some weeks after the London underground bombings, as part of what independent investigation into: was reported to be a “shoot to kill” policy by police.58 what the terms of the rules of engagement were, including the policy which appeared to permit ofﬁcers to “shoot to 5.5.5. Storage of ﬁrearms kill”, i.e. to shoot in the head, An issue often forgotten is that there should be strict procedures for the suspects believed to be suicide storage and registration of weapons and ammunition as a means of controlling bombers (this operation was reportedly codenamed the use of ﬁrearms by police. Weapons should be stored in designated secure Operation Kratos); how the facilities and should each carry a registration number. When weapons and operation was planned; how ammunition are issued, the receiving ofﬁcer’s name, the date and time, the the police ofﬁcers were registration number of the weapon, and the type and number of munitions briefed and what orders they were given; whether a issued should be registered. These details should be checked when the senior ofﬁcer was contacted weapons and any munitions are returned. The number of munitions used before action was taken; should be accounted for in the report that follows any operation in which whether a sufﬁcient warning ﬁrearms are used. was given; and whether the action taken by the ofﬁcers was fully in compliance with In some situations ofﬁcers may wish to take their weapons home. Amnesty international human rights International has documented examples where police have used their guns in standards concerning the domestic and neighbourhood disputes or rented them out to criminal gangs use of force in the context in return for a share in the proceeds of crime, or used them to commit crimes of law enforcement. See UK: Full circumstances into fatal themselves.59 If a police ofﬁcer intends to take his or her weapon home, this shooting must be investigated. should be reported to and approved by a superior ofﬁcer. Adequate and secure These points were reiterated in storage facilities should be available in the ofﬁcer’s home. However, the taking UK: The Killing of Jean Charles of ﬁrearms home should be the exception rather than the general rule. de Menezes: let justice take its course. 59 ) AI, 2004, Guns and policing. Police Use of Force 139 5.5.6. Reporting procedures Records should be kept of decisions made and actions taken during the course of an incident in which force is used. In the United Kingdom, an “audit trail” of these decisions must be kept in the “Command Log / Incident Record”. This is used for evaluating the operation in order to distil lessons for the future and as evidence in case an incident leads to any disciplinary or criminal action.60 Whenever a new technique of force is introduced, such as the use of pepper spray, appropriate reporting procedures, similar to those used for ﬁrearms, should also be introduced. Moreover, development and deployment of such means should be carefully controlled. 5.5.7. Investigations following an incident International law requires that investigations be carried out in cases where a ﬁrearm has been used by police, or where police action has resulted in serious injury or death. Additionally, there should be investigations where operations have shown failings in command or where there has been danger to the public.61 The UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions include articles on the investigations of such illegal shootings.62 Police typically tend to be extremely hostile towards such investigations and seek to avoid them. Colleagues may feel uncomfortable co-operating with such investigation and may even be pressurised not to cooperate. In Chapter 9 we will look at police culture and its so-called ‘blue wall of silence’ that often seriously hampers investigations. However, resistance to such investigations may not be restricted to the police; indeed the prosecution services, the media and the wider public may support the police in avoiding accountability and may even turn against human rights advocates, blaming them for complicating police work.63 60 ) Basic Principles, Principle 20. It is in the interests of the public, any victims and the police agency itself that 61 ) ACPO Manual of Guidance an investigation into the use of ﬁrearms or cases where death or serious injury on Police Use of Firearms, Chapter 6, section 2. has occurred be thorough and transparent, while protecting the identity of 62 ) Resolution 1989/65 those involved as appropriate. The purpose of the investigation is to establish adopted by the Economic the truth about what happened. The scope of the investigation should and Social Council, 24 May include the circumstances of the situation prior to the use of ﬁrearms or the 1989. Principles 9-17 deal with investigations. occurrence of death or injury as well as the management of the incident. For 63 ) Cavallaro, J.L., 2003, Crime, the purposes of the investigation, there should be an examination of the scene public order and human rights. of the incident, as well as the notes made by ofﬁcers involved or noted in the An interesting case-study incident report log (the ‘audit trail’). The scene of the incident must therefore concerning police violence be protected and forensic evidence preserved as appropriate. Independent in Norway is presented by Bratholm, A., “Police violence witnesses should be identiﬁed and interviewed.64 in the city of Bergen: A marathon case concerning the rule of law and human rights.” 64 ) ACPO Manual of Guidance 5.6. Policing demonstrations – public order management on Police Use of Firearms, Article 21 of the ICCPR sets out the ‘right to peaceful assembly’. Amnesty Chapter 6, section 2. International has documented countless examples of governments violating 140 Understanding Policing this right, prohibiting people from assembling and often employing excessive force to disperse those who do assemble. Concerns about excessive use of force in relation to public order management in a particular country need to be measured against systems of public order management developed in that country to ‘manage’ the use of force and ﬁrearms, as well as international human rights principles governing the use of force. The Basic Principles distinguish between “lawful assemblies” and “unlawful assemblies”. In many countries the law restricts the right of assembly beyond the limits allowed under Article 21 of the ICCPR. Note that the issue of the violation of the right to freedom of assembly is beyond the remit of this Resource Book and is therefore not dealt with here. 5.6.1. Key human rights principles relating to public order management In addition to those principles for the use of force referred to in Section 5.2. that are applicable to the policing of demonstrations, there are some additional or more speciﬁc principles, including: • The right to peaceful assembly65: police have to monitor public events of all kinds, including pre-planned political or other demonstrations, spontaneous public gatherings (for example in response to an incident) and major public events such as sports competitions. They must protect the rights of the participants to assemble peacefully and protect the safety of all, including non- participants. A public event can breed hot-spots of violence which may be fairly easy to cordon off and contain. It can also turn, gradually or instantaneously, into a stampede, a riot involving use of improvised weapons or even a battle with ﬁrearms. • Principles of proportionality and necessity: Force and ﬁrearms may only be used to the minimum extent necessary: force should be avoided when dispersing unlawful but non-violent public order events but if that is not practicable force may be used to the minimum extent possible.66 However, it should be clear that if an unlawful assembly is not causing, and is unlikely to cause, disturbance of public peace and is non violent, the question of using force should not arise. Peacefully assembling to protest or demand something is an mportant democratic activity. Human rights oriented policing demands that this right be respected. • In the dispersal of violent assemblies ﬁrearms may be used only when less dangerous means are not practicable and only to the minimum extent necessary. This means other means of force should be applied ﬁrst, and only if these have failed to control the situation 65 ) ICCPR, Article 21. This right and disperse the unlawful assembly should police be allowed to is reiterated in the UN Basic Principles. Principles 12-14 resort to using ﬁrearms. The amount of force used must be the deal with use of force against minimum required to control the situation. In case the use of ﬁrearms assemblies. becomes absolutely necessary, ﬁring must be the minimum and cease 66 ) Basic Principles, immediately the crowd shows signs of dispersing. In any event ﬁrearms Principle 13. 67 ) Basic Principles, should be used against persons only in self-defence or the defence of Principles 14 and 9. others against the imminent threat of death or serious injury.67 Note Police Use of Force 141 that while the international standards do not actually say that ﬁrearms should not be used indiscriminately, this is deﬁnitely implied in the Basic Principles 5 (a & b), 9, 10, 11 (a, b, c & e). 5.6.2. What the standards don’t say The UN Code of Conduct and the Basic Principles both state that the principles they contain should be incorporated into national regulations. However, there are many vital issues concerning the use of force and ﬁrearms in public order situations that the international standards do not cover, including: • What criteria are used to decide when a public event is violent – is it when one stone is thrown or ten? When is the degree of violence sufﬁcient to allow for the use of what types of force? • How do police adapt different levels of force to different situations? • What kind of force may be used against a group rather than one or more individuals (such as tear gas or water canon)? • What tactics should, or should not, be used? • What weapons should, or should not, be used? 5.6.3. How to exercise public order management68 There are a variety of public order situations including spontaneous incidents arising from community disputes, criminal or police activity; protests and demonstrations by direct action groups and others or as part of industrial dis- putes; and organized public events such as sporting events, concerts etc. Any of these public events could be lawful or unlawful. In any event the police res- ponse to them must be lawful, necessary and proportionate. Individual ofﬁcers may be called upon to account for their actions. They will need to show that any force used was necessary and proportionate on the basis of information or intelligence available to them. For this reason they should record decisions and actions taken in crowd control situations. Public order management is really about managing conﬂict. Planning, preparation, communication and leadership are key principles in public order management. It is important that police, in co-operation with other relevant agencies (local government, social services etc.) identify and address the causes and symptoms of a conﬂict before tension escalates. This requires: a. The gathering of intelligence to identify and assess risk b. Preparation and communication c. Provision of a reasonable, proportionate and effective police response Intelligence: • Good intelligence includes identifying groups that may be involved and 68 ) This section relies heavily obtaining information about their strength and their aims on the principles included in • Having good community relations facilitates intelligence-gathering the European Code of Police • Intelligence enables police to plan effectively Ethics and the manuals of the • Intelligence should be gathered continuously during an operation so UK Association of Chief Police Ofﬁcers (ACPO) most notably that tactics may be adapted to meet the changing nature of the threat the Manual of Guidance on Keeping the Peace. 142 Understanding Policing Preparation: This includes making decisions about the numbers of police needed as well as their dress (normal uniforms or combat uniforms) and equipment. Decisions need to be taken about the deployment of auxiliary services such as the Dogs Unit and mounted police. Preparation also includes the minimisation and management of possible risks with other appropiate agencies and community representatives. Communication: • Communication within the police: including with headquarters and those deployed to the public order situation. • Communication with crowd leaders and facilitation: establishing liaison with leaders of the crowd at an early stage and explaining how police intend to facilitate the lawful aims of the crowd while dealing with groups and individuals that act illegally. Graduated police response: Police must make adequate resources available to manage a public order situation but should deploy them tactically and in proportion to the situation as it develops. Though there might be some factions in a demonstration intent on causing violence, policing must be carried out in such way as to protect the rights of the peaceful demonstrators. Those that are intending to cause, or are causing, violence could be isolated from the peaceful demonstrators. This requires good policing skills, most notably observation and communication skills, so that the police can respond as required to different people and groups amongst the demonstrators. Indeed: a demonstration should not be treated as one collective mass, but should rather receive differentiated responses (see box below). If this is difﬁcult, police reaction could rather aim at dispersing the crowds and diffusing tensions, hence avoiding use of force. Obviously, if force is required police should use it proportionately and lawfully to restore order and protect the rights of the public. Chain of command: There should be a clear chain of command to ensure a clear strategy, good communication, and an ‘audit trail’ of decisions taken, so that the operation may be evaluated and lessons learned subsequently. The ACPO Manual of Guidance on Police Use of Firearms describes a command structure of three levels: • Strategic (‘gold’) – responsible and accountable for overall strategic command and provision of human and material resources; • Tactical (‘silver’) – responsible for deployment and use of the resources; • Operational (‘bronze’) – responsible for leading groups to carry out the tactical plan. At each level, commanders are responsible for maintaining communications and for keeping an ‘audit trail’ to record decisions and events. However it is 69 ) ACPO Manual of Guidance on Police Use of Firearms, recognized that the ‘bronze’ commander, who is closer to the action, may not Chapter 4, section 1. always be able to keep records.69 At each level of responsibility, commanders Police Use of Force 143 have to weigh the risks of actions, and of taking no action (sometimes it may be better to refrain from an action, or even abort the operation, on grounds of public safety). The principles of crowd psychology The principles of crowd psychology are increasingly inﬂuencing police practice through incorporation into training and tactics. Recent research70 argues against the previously accepted idea that people in a crowd lose their individual identity, values and standards – which indeed is the false presumption with which police are still trained in many countries. There is evidence that people adopt more than one social identity. When in groups the social identity belonging to that group becomes salient and people conform to the norms of that group. Instead of being a mindless mass, people act according to the concerns of the group. They will defend members of their group against attack; they will also act against deviant members of their group, for example they may restrain a member who acts violently if they think that violence will defeat the aims of the group (self-policing). Studies have suggested that crowd violence is not random but occurs when another group (such as the police) either acts in ways the group views as contrary to its values and standards or acts to prevent the group doing something they consider legitimate in terms of the same values. A crowd comprising more than one group will reﬂect different aims, standards and values. This perspective suggests that police should promote ‘self-policing’ by being supportive to people acting legitimately even in the presence of people or groups with illegitimate motives. This implies greater emphasis on: • Gathering intelligence about groups to understand their motives and composition • Facilitating their legitimate objectives by organizing policing accordingly communicating with the group either through their own leaders or through ‘community mediators’ or ‘guards’ • Ensuring that communication takes place before, during and after the 70 ) Reicher, S., C. Stott, P. event Cronin, O. Adang, 2004, “An • ‘Differentiation’ which implies: treating individuals and groups integrated approach to crowd psychology and public order according to their different ways of acting; using differentiated strategy, policing.”. tactics and equipment The use of ‘less than lethal weapons’ is a grey area in public order management and there is no consensus about their use. The minimum requirements for the use of less than lethal weapons are: • It should be clear who is authorised to decide on deployment • It should be clear that the weapons are deployed in such a way as to minimise damage and the potential for lethal consequences • They should always be used in accordance with the principles of proportionality, legality, accountability, necessity and subsidiarity • They should take the principles of crowd psychology into account 144 Understanding Policing 5.7. Summary Police are entrusted with important powers that can affect people’s lives immensely and, if misused, can result in serious human rights violations. For this reason international standards have set the boundaries for using these powers. Human rights oriented policing means policing within the limits of these boundaries. This means trying to avoid using force – but being able and willing to use force lawfully and proportionately when strictly necessary and account for it afterwards. Amnesty International and other human rights advocates understand that the police sometimes have to use force in order to achieve a lawful policing objective. Indeed, assessing how much force is proportionate is not always an easy task and requires intensive training and experience. Police practice and experience in this area should be subject to constant monitoring and evaluation so as to improve police professionalism. Vital to improving police professionalism is accounting for police actions. Such accountability necessitates transparency about actions and a willingness to reﬂect on how practice can be improved. 146 Understanding Policing © ANP / Randall Jeff Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law Article 9 (1), International Covenant on Civil and Political Rights Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law Article 14 (2), International Covenant on Civil and Political Rights All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person Article 1, UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment No law enforcement ofﬁcial may inﬂict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment (…) Article 5, UN Code of Conduct for Law Enforcement Ofﬁcials Arrest and Detention 147 6. Arrest and Detention 6.1. Introduction The right to liberty is one of the most important rights available to individuals.1 Depriving someone of her or his liberty is one of the most intrusive actions a State can take against its people. At the same time, deprivation of personal liberty represents one of the most common means used by the State to ﬁght crime and maintain internal security. The right to liberty is not an absolute right, but the lawful application of the powers to arrest and detain is restricted to speciﬁc circumstances, that need to be well described in law and for which subsequent accountability is required. In the commentary to Article 1 of the UN Code of Conduct for Law Enforcement Ofﬁcials (UN Code of Conduct), law enforcement ofﬁcers (LEOs) are deﬁned by their distinctive powers to arrest and detain. As the UN Code of Conduct uses a wide deﬁnition for LEOs, it is implied that authorities other than the police may be authorised to arrest and detain. Most jurisdictions do have additional agencies, other than the police, that have powers to arrest, such as special investigation units (fraud units, special inspectorates), customs ofﬁcers and ﬁre ofﬁcers. These law enforcers have the responsibility, as well as the authority, to enforce the laws of the State they serve. However, the UN Code of Conduct applies to all of these. Article 2 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (hereafter: Body of Principles) additionally requires these ofﬁcials to be “competent or authorised for that purpose.” The meaning of the terms ‘arrest’ and ‘detention’ is not always clear. The Body of Principles provides the following deﬁnitions. ‘Arrest’ means the “act of apprehending a person for the alleged commission of an offence or by the action of an authority.” Note that this arrest may be on criminal grounds, reviewed by a judge, or may be administratively ordered (‘by the action of an authority’). Police may carry both out. ‘Detained person’ means “any person deprived of personal liberty except as a result of conviction for an offence.” ‘Detention’ and ‘custody’ are used interchangeably. This deﬁnition includes administrative as well as preventive detention, both of which may be carried out by police. Arrest and detention are often used interchangeably. Similarly ‘arrest’ is often 1 ) Articles 3, 9 and 29 of the UDHR; Articles 9, 10, 11, 14 and used in conjunction with suspect interview. It is important to distinguish 22 of the ICCPR. between these different concepts. A suspect can be arrested but this need not 2 ) After all, he is to be happen. An arrested person can be detained, but might also be permitted to presumed innocent and has a await his or her trial at home.2 An arrested person that is not detained can still right to liberty. ICCPR Article 9 (1); AI, 1998, Fair Trials Manual, be technically ‘under arrest’; as long as someone is under arrest he or she can p. 26. have his or her liberty restricted in order to be ‘available for the investigation’ 148 Understanding Policing (this normally means that a person is not permitted to leave the country). Suspect interview might take place following or prior to the arrest, and the arrest can take place during the interview. Suspect interview is an investigative method, whereas the arrest is a legal step in bringing someone to trial. ‘Imprisoned person’ means any person deprived of personal liberty as a result of conviction for an offence. Note that, contrary to the deﬁnitions given above, Amnesty International sometimes uses the term ‘prisoners’ both for (pre-trial) detainees as well as for (post-conviction) prisoners. In Section 6.2. will look at what the international standards say regarding arrest and detention, followed by what they don’t say in Section 6.3. States don’t always detain individuals under criminal law, nor do they always detain individuals as a step towards initiating criminal proceedings. In this regard, Section 6.4. looks into preventive and administrative detention. Section 6.5. looks at how arrest and detention are carried out lawfully in police practice. We close with a brief summary. This Resource Book looks only at detained persons in police detention. Detainees in police custody can be held at detention facilities at the police station, or at other designated premises (such as separate facilities in a prison). Imprisonment, which in some countries the police are responsible for, is not considered here. Secondly this Resource Book will focus on adult detainees. International standards covering juveniles will not be considered. Finally, the applicability of international standards to other groups than those arrested and detained on criminal charges will not be discussed in this Chapter. Amnesty International’s Fair Trials Manual discusses the right to liberty extensively in its ﬁrst Chapter. We recommend that readers of this Resource Book study the ﬁrst part of the Fair Trials Manual, focusing on pre-trial rights.3 Detention situations are also addressed extensively in Amnesty International’s Combating Torture: A manual for action.4 6.2. Key human rights principles relating to arrest and detention 6.2.1. Key principles • Non-arbitrariness. “No one shall be deprived of his liberty except on 3 ) AI, 1998, Fair Trials Manual. such grounds and in accordance with such procedure as are Chapters 1-10 with special established in law.”5 Arbitrary should not only be understood as emphasis on Chapters 1, 2, 4, ‘against the law’, but should also be interpreted more broadly to 5, 6 and 10. 4 ) AI, 2003, Combating Torture: include elements of inappropriateness, injustice and a lack of A Manual for Action. Chapters predictability.6 For arrest and detention to be lawful, i.e. non-arbitrary, 2, 3, 4 and 5. it must be in accordance with domestic and international law. An arrest 5 ) ICCPR, Article 9. is unlawful if a person is arrested for an action they are entitled to 6 ) See AI, 1998, Fair Trials carry out under international as well as domestic law (such as the right Manual, p. 25, referring to the HRC’s comment on Article 9 to assemble, associate etc.). Arrest and detention are only to be carried (1) ICCPR. out for the purposes of the administration of justice: restrictions Arrest and Detention 149 imposed on the detainee that are not strictly required for the detention or to prevent hindrance to the administration of justice are forbidden.7 Moreover, even when detainees have been arrested lawfully, but are held after their release has been ordered by a judicial authority, the detention becomes arbitrary. • Presumption of innocence:8 “the presumption of innocence implies a right to be treated in accordance with this principle.”9 It shall not be the general rule that a person awaiting trial shall be detained in custody – but release may be subject to guarantees to appear for trial.10 It follows from the presumption of innocence that a detained person is to be segregated from convicted persons.11 • Right to information: the right to be informed of the reasons for the arrest/detention, to be informed of his or her rights (including the right to legal counsel), the right to be informed of charges against him/her, in a language the person understands.12 • Prompt appearance before a judicial authority13: Speciﬁc and precise time limits are ﬁxed by law in most States parties and, in the view of the UN Human Rights Committee, delays must not exceed a few days.14 7 ) Body of Principles, Principle • Right to legal counsel. Communication with the detainees’ legal 36. 8 ) ICCPR, Article 14 (2); counsel must be ‘in full conﬁdentiality’ (within sight but not in Standard Minimum Rules, hearing).15 Rule 84; Body of Principles, • Use of force should accord with principles discussed in Chapter 5 of Principle 36. this Resource Book. Law enforcement ofﬁcials shall not use force 9 ) HRC, General Comment No.13, para. 7. unless strictly necessary for maintenance of order or for personal 10 ) ICCPR, Article 9(3). safety reasons. Firearms may only be used for the protection of life. In 11 ) ICCPR, Article 10(2)a,; principle, ﬁrearms should not be carried by detention ofﬁcers, unless Standard Minimum Rules, Rules absolutely necessary.16 8(b) and 85. • Absolute prohibition on torture and other cruel, inhuman or 12 ) ICCPR Article 9 and 14; Body of Principles, Principle 13, degrading treatment.17 Each State shall take effective administrative 14 and 17. measures to prevent torture.18 Every State is obliged to “keep under 13 ) ICCPR, Article 9(3). systematic review (…) arrangements for the custody and treatment of 14 ) HRC, General Comment persons subjected to any form of arrest, detention or imprisonment in No.8 para. 2. 15 ) ICCPR art 14 (3); Body of any territory under its jurisdiction, with a view to preventing any cases Principles, Principles 17 and of torture.”19 In order to keep custody arrangements under systematic 18; Standard Minimum Rules, review this implies that such arrangements must be recorded in Rule 93. writing, open to scrutiny and must be communicated to the responsible 16 ) Standard Minimum Rules, Rule 54 (3). ofﬁcials. It also implies that detention must be open to improvement 17 ) UN Convention against of any kind (facilities, training of the detention ofﬁcers, legal provisions Torture and Other Cruel, etc.). Note that solitary conﬁnement can be seen as falling within the Inhuman or Degrading scope of torture (or other cruel, inhuman or degrading treatment) and Treatment or Punishment (CAT); ICCPR, Article 7. as such is not acceptable.20 18 ) CAT, Article 2. • Right to a fair trial.21 A suspect is entitled to a fair trial, reﬂected in 19 ) CAT, Article 11. the principle of ‘equality of arms’ between the parties in a case, as 20 ) HRC, General Comment stipulated in Articles 9 and 14 of the ICCPR.22 “Equality of arms (…) No.20, para. 6. 21 ) ICCPR, Article14. means that both parties are treated in a manner ensuring that they 22 ) AI, 1998, Fair Trials Manual, have a procedurally equal position during the course of a trial, and are p.83. in an equal position to make their case.” 150 Understanding Policing 23 ) Standard Minimum Rules, • There shall be duly recorded23: Rule 7; Body of Principles, · The reasons for the arrest Principle 12; Principles on the Effective Prevention and · Identity of the arrestee Investigation of Extra-Legal, · Date and time of: the arrest, when the arrested person was taken to a Arbitrary and Summary place of custody; her or his ﬁrst appearance before a judicial or other Executions, principle 6. authority 24 ) HRC, General Comment No.20, para 11. The Comment · Identity of the law enforcement ofﬁcials concerned in the arrest also states: “(these) registers · Precise information concerning the place of custody; speciﬁc steps (must be) readily available and should be taken to rule out the possibility of incommunicado accessible to those concerned, detention24 including relatives and friends.” And “States parties should • Habeus corpus (or Amparo). The arrested/detained person is entitled ensure that any places of to take proceedings before a court, in order that the court may decide detention be free from any on the lawfulness of the arrest and/ or the detention25 equipment liable to be used • Trial without undue delay.26 Pre-trial detention should be an for inﬂicting torture or ill- treatment.” exception and as short as possible. As the trial must be held within 25 ) See also Body of Principles, a reasonable time, this can be taken to mean that the investigation Principle 32. needs to be conducted promptly and swiftly. 26 ) ICCPR, Article 14(3)c; Body • Right to access to the outside world: This includes the following of Principles, Principle 38. rights27: 27 ) Body of Principles, Principles 15, 16, 19, 24, 25 and · the detainee should have the right to communicate and receive 26; Standard Minimum Rules, visits (in particular with members of the family) subject only to Rules 22, 24, 37, 38, 91 and 92; reasonable conditions and restrictions (when exceptional needs of UN Code of Conduct, Article 6. the investigation so require); 28 ) CAT, Article 13 and 14; Standard Minimum Rules, · incommunicado detention is at all times prohibited; Rules 35-36; Body of Principles, · the right to inform family of the arrest and detention and place of Principles 33 and 35. detention; 29 ) CAT, Article 13; HRC, · the right of access to doctors. General Comment No.20, para. 14. • The right to lodge complaints against ill-treatment and the right to 30 ) Principles on the Effective compensation.28 So as to make the remedy effective, competent Prevention and Investigation authorities must investigate complaints promptly and impartially.29 of Extra-Legal, Arbitrary and • Chain of command. Governments shall ensure strict control, Summary Executions, Article 2; Body of Principles, Principle including a clear chain of command, over all ofﬁcials responsible for 24; Basic Principles, Article 24; apprehension, arrest, detention, and custody, as well as those ofﬁcials Guidelines for the Effective authorised by law to use force and ﬁrearms.30 Implementation of the Code • Oversight: Places of detention shall be visited regularly by qualiﬁed of Conduct for LEOs stress the importance of clear lines of and experienced persons appointed by, and responsible to, a command. competent authority independent of the authorities in charge of the 31 ) Standard Minimum Rules, administration of the place of detention. The detainee is entitled to Rule 55; Body of Principles, communicate freely and conﬁdentially with these visitors.31 Principle 29; Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, principle 7. Investigating cases of torture 32 ) Giffard, C., 2000, The There are several relevant instruments regarding investigation of cases of torture reporting handbook. torture. A well known one is The Torture Reporting Handbook, developed by the University of Essex in 2000.32 This handbook discusses how to document and respond to allegations of torture within the international human rights system. It also has some chapters on regional mechanisms and procedures. Arrest and Detention 151 The Manual for the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, also known as the Istanbul Protocol, developed by a group of international experts and NGOs, gives substantial guidance on why and how such investigations could be carried out.33 The Manual provides in-depth legal as well as medical information relevant to investigations into torture, and is intended to serve as international guidelines for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting ﬁndings to the judiciary or any other investigative body. The Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment34, contain the minimum standards required of states in order to ensure effective documentation of torture. The Istanbul Protocol incorporates these Principles in its appendix. 6.2.2. International and regional oversight As mentioned above, international human rights standards require States to establish some mechanism to oversee places where people are held when deprived of their liberty. The most well-developed of such systems exists on a regional basis within the Council of Europe (see below); a recent initiative at UN level aims at establishing a similar system worldwide. United Nations In 2002 the UN adopted the Optional Protocol to CAT (known as OPCAT). OPCAT’s purpose is deﬁned in its Article 1: “to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.”35 OPCAT came into force as of 22 June 2006. Council of Europe Countries within the jurisdiction of the Council of Europe are subject to scrutiny 33 ) Istanbul Protocol, Manual by the Committee to Prevent Torture and Inhuman or Degrading Treatment or for the Effective Investigation Punishment ( (CPT). The Committee examines, by means of visits, the treatment and Documentation of Torture of persons deprived of their liberty with a view to strengthening, if necessary, and Other Cruel, Inhuman or Degrading Treatment or the protection of such persons from torture and from inhuman or degrading Punishment. Submitted to treatment or punishment (Article 1, European Convention for the Prevention of the UN High Commissioner of Torture and Inhuman or Degrading Treatment or Punishment). CPT delegations Human rights, 9 August 1999. visit Contracting States periodically but may organise additional “ad hoc” 34 ) UN General Assembly visits if necessary. The Committee must notify the State concerned but need Resolution 55/89 of 4 December 2000. not specify the period between notiﬁcation and the actual visit, which, in 35 ) UN General Assembly exceptional circumstances, may be carried out immediately after notiﬁcation. Resolution 57/199, 18 Governments’ objections to the time or place of a visit can only be justiﬁed December 2002. For the latest on grounds of national defence, public safety, serious disorder, the medical update on signatories and ratiﬁcations see: www.ohchr. condition of a person or on the grounds that an urgent interrogation relating org. to a serious crime is in progress. In such cases the state must immediately 152 Understanding Policing take steps to enable the Committee to visit as soon as possible. Under the Convention, CPT delegations have unlimited access to places of detention and the right to move inside such places without restriction. They interview persons deprived of their liberty in private and communicate freely with anyone who can provide information. The recommendations that the CPT may formulate on the basis of facts found during the visit, are included in a report that is sent to the State concerned. This report is the starting point for an ongoing dialogue with the State concerned. A visit by the Committee for the Prevention of Torture: what is it all about? In joint co-operation between the Council of Europe and the Swiss-based Association for the Prevention of Torture, together with the Geneva Police, a leaﬂet has been produced targeting police ofﬁcers, explaining what a visit by the Committee for the Prevention of Torture is all about. The leaﬂet, called: A visit by the CPT: what’s it all about? is in a Q&A format and discusses issues such as ‘Why should a police ofﬁcer co-operate with the CPT?’, ‘Does torture exist within Europe?’, ‘Does the CPT give prior notiﬁcation about their visit?’, ‘How does a police ofﬁcer identify these are CPT-delegates?’ and ‘What happens after the visit?’ Note that the CPT also publishes extracts from its reports (so-called substantive sections from its general reports), containing standards to which police should minimally comply.36 6.2.3. Prohibition of racial or ethnic proﬁling One of the basic principles underlying all others in relation to arrest is the principle of non-arbitrariness. Non-arbitrariness implies that someone should not be arrested, nor stopped or searched, for reasons that are discriminatory; e.g. no one should be stopped or searched simply on the basis of their race, ethnicity, national origin or religion. This principle is violated in practice on numerous occasions and as is shown in the many examples of racial or ethnic proﬁling documented by Amnesty International. Amnesty International-USA (AI-USA) published a comprehensive report on this issue in 2004 and the Open Society Justice Initiative has undertaken a project on the same topic in Europe.37 AI-USA has deﬁned racial proﬁling as “the targeting of individuals and groups by law enforcement ofﬁcials, even partially, on the basis of race, 36 ) CPT, 2004, The CPT ethnicity, national origin, or religion, except where there is trustworthy standards. “Substantive” sections of the CPT’s General information, relevant to the locality and timeframe, that links persons belonging Reports. to one of the aforementioned groups to an identiﬁed criminal incident or 37 ) AI – USA, 2004, Threat and scheme.” humiliation, racial proﬁling, domestic security and human Though discrimination is clearly prohibited under international law, proﬁling rights in the United States; Open Society Justice Initiative, is not mentioned. Police work is often about pinpointing the right person as a Justice Initiatives, June 2005. suspect of a certain offence. When certain communities are associated with Arrest and Detention 153 crime, or with particular types of crime, this may lead to police ofﬁcers focusing on these particular communities when seeking to solve or prevent crime. These stereotypes lead to stigmatization of certain communities or certain groups within these communities and lead to further polarization between the police and these communities. On the other hand, police may argue that these stereotypes are not entirely based on prejudice but are validated by detention statistics often showing the involvement of a relatively high proportion of these communities in certain crimes. Though international standards clearly state that arrest and detention should be based on law and the principle of the presumption of innocence, the reality of crime statistics as confronted by police in their daily work can lead to bias in their attitude towards certain groups. Recommendations in the aforementioned report by AI-USA, state that all legislation should accord with the ICCPR and the International Convention on the Elimination of All Forms of Racial Discrimination, and should ban racial proﬁling, proscribe mandatory data-collection for all stops and searches and criminalize violations of the ban. There should be effective diversity recruitment policies and all policies and practices should be reviewed for their possible discriminatory impact. Police misconduct should be monitored, investigated and punished. 6.3. What the standards don’t say 6.3.1. Concerning arrest International standards are quite speciﬁc in relation to arrest. As the arrest itself is really just a brief moment in time there is not much to add: the 38 ) Within the Council of standards specify clearly what needs to be said and what rights the arrested Europe’s jurisdiction, in Fox, Campbell and Hartley person has. However, some issues that need to be speciﬁed in national v the United Kingdom the legislation and Standard Operational Procedures include: court said that any person arrested should know why • Who may arrest exactly? he is being deprived of his liberty. Any person arrested • What is the difference between ‘stop’ and ‘arrest’? must be told, in simple, non- • How long is a crime ‘in ﬂagrante’? technical language that he • When is a warrant required? can understand, the essential • How should an arrest be carried out and how should ofﬁcers deal with legal and factual grounds for his arrest, so as to be able, if potential resistance? he sees ﬁt, to apply to a court • What amount of force is acceptable in order to arrest a person? to challenge its lawfulness. Force needs to be proportionate, but the standards do not specify what Whilst this information must be ‘proportionate’ is, i.e. how much force may be used to prevent conveyed “promptly”, it need not be related in its entirety by resistance? the arresting ofﬁcer at the very • How much damage to property is acceptable in carrying out an arrest? moment of the arrest. Whether For example, when arresting someone it may be necessary to break the content and promptness of down a door; how much effort should police spend in trying to avoid this? the information conveyed were • How much information should the police disclose in informing the sufﬁcient is to be assessed in each case according to its arrested person of the reasons for his or her arrest and the charges special features. against them?38 154 Understanding Policing • What investigative methods, such as body searches, may be carried out on an arrested person, upon arrest, before she or he has appeared before a judicial authority? 6.3.2. Concerning detention In relation to detention, the standards are even more precise. The Body of Principles cover a whole range of issues relating to detention and are very clear on what lawful detention requires. However, a few things that may need further clariﬁcation remain: • The Standard Minimum Rules on the Treatment of Prisoners (Standard Minimum Rules) provide guidance on food, drink, separation of men and women, and leisure time, time spent in the open air etc. (Rules 8- 21). These can also be applied to police custody. However, two points are worth mentioning: · pending the investigation these rules tend to be less strictly observed. It is unclear what restrictions are considered acceptable in this period of time. · similarly, police custody usually means a police station. As such, the facilities tend to be very minimal. • There is no reference to commercially run detention facilities. • There is no reference to what measures should be taken to prevent suicide or other forms of self-harm. 6.4. Preventive and administrative detention Administrative detention is a procedure under which detainees are held without charge or trial. No criminal charges are ﬁled and there is no intention of bringing the detainee to trial.39 Administrative detention is not authorised by judicial authorities (deﬁned in the ‘Use of terms’ of the Body of Principles as “authority under the law whose status and tenure should afford the strongest possible guarantees of competence, impartiality and independence”). Examples are ‘illegal aliens’ detained prior to their expulsion, temporary detention for public order reasons and the detention of psychiatric patients. Administrative detention must not be confused with preventive detention, meaning detention without there being the requirements for reasonable suspicion as stated in penal law. Preventive detention should not be confused with pre-trial detention (though in some jurisdictions the terms are used interchangeably). Note that preventive detention can be administratively ordered, and administrative detention can have preventive objectives. Administrative detention is about which authority may authorise the detention, whereas preventive detention is about the goals to be obtained. 39 ) AI, 1997, Israel and In 2007 more and more countries are considering the enactment of provisions the occupied territories: Administrative detention: to legalize preventive detention as States expect preventive detention to be Despair, uncertainty and lack of an effective measure against terrorism and consider the normal safeguards due process. too stringent to permit successful prosecutions. In the United Kingdom, a Arrest and Detention 155 40 ) See AI, 2005, United draft Terrorism Bill proposed an extension of the maximum time limit allowed Kingdom: AI’s brieﬁng on the for detention in police custody, without charge or trial, from 14 days to three draft Terrorism Bill 2005; United Kingdom: Human Rights. A months. In the face of opposition, this limit was cut to 28 days in the ﬁnal broken promise. legislation.40 However, in 2007 the new government announced plans to extend 41 ) AI, 2002, Rights at risk: the limit to 56 days. Amnesty International’s concerns regarding security legislation and law Administrative as well as preventive detention, often carried out ‘in enforcement measures, p. 18. communicado’, often lack the safeguards that are integral to the criminal 42 ) See AI, 1997, Israel and justice system. In its 2002 report Rights at risk Amnesty International sums up the occupied territories: the commonalities of many administrative detention systems: “The decision Administrative detention: Despair, uncertainty and lack of that a person is a ‘’suspected terrorist’’ who is to be detained is frequently due process; in 2002, Israel and made by an executive ofﬁcial in a secret process. An accused person is likely the occupied territories: Mass to be unaware that the process is even occurring and cannot defend him or detention in cruel, inhuman herself. The evidence will probably include material inadmissible in a criminal and degrading conditions; in 2005, Amnesty International prosecution (for example, evidence which is hearsay, rather than something News service 221/ 2005, that the witness has heard or seen directly) and the decision made on a lower Israel/Occupied Territories: standard of proof. Although an appeal to a judicial body is permitted, the Administrative detention process frequently still involves secret evidence and anonymous witnesses, cannot replace proper thereby denying people facing extremely serious allegations and consequences administration of justice. 43 ) HRC, General Comments the right to defend themselves effectively.”41 Israel and the Occupied Territories No.8, para. 4. provide an example where Amnesty International has repeatedly stated its belief that the practice of administrative detention violates fundamental human rights and is often used to circumvent fair trial requirements.42 Amnesty International has also opposed the administrative detention of illegal immigrants and others that have not committed a criminal offence. For administrative detention to comply with human rights principles it needs to be executed ‘on such grounds and in accordance with such procedures as are established in law’, which in itself is in accordance with international human rights standards. The two crucial criteria for assessing its legitimacy are lawfulness of the grounds for such detention and its duration. The UN Human Rights Committee issued a General Comment on the lawfulness of preventive detention in 1982: “If preventive detention is used, for reasons of public security, it must be controlled by the same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law, information of the reasons must be given and court control of the detention must be available as well as compensation in the case of a breach. And if, in addition, criminal charges are brought in such cases, the full protection of article 9 (2) and (3), as well as article 14, ICCPR, must also be granted.”43 Working Group on Arbitrary Detention In 1991 the UN’s Human Rights Commission established the ‘Working Group on Arbitrary Detention’ (WGAD) tasked to investigate cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration on Human Rights or in the relevant international legal instruments accepted by the States concerned, provided 156 Understanding Policing that no ﬁnal decision has been taken in such cases by domestic courts in conformity with domestic law.44 WGAD carries out visits to detention centres upon invitation. By mid-2007 it had visited more than 25 countries. Its mandate includes the investigation of cases on receipt of individual complaints. WGAD’s most recent reports all discuss the Working Group’s concerns regarding detention, sometimes administratively ordered, in the context of the ‘war against terrorism’.45 Basically WGAD formulates two distinct concerns in this respect. The ﬁrst is about security legislation aiming to legalize wrongful behaviour such as allowing persons to be detained indeﬁnitely or for very long periods, without charges being framed, without the detainees being brought before a judge and without remedy to challenge the legality of the detention. The second concern is about deﬁnitions of “terrorism” and “terrorists” being so broad and vague that any political opponent can be targeted, thus effectively broadening the scope of those that can be detained and restricted in the enjoyment of their rights. 6.5. Lawful arrest and detention in practice 6.5.1. Introduction “The greatest risk of torture and other forms of ill-treatment to individuals is in the ﬁrst phase of arrest and detention, before they have access to a lawyer. This risk persists as long as the investigation lasts, irrespective of where a suspect is being held.”46 Despite all the safeguards provided in the law and in other regulations, police do commit many unlawful acts. Unlawfulness of arrest can take many forms, the most common and widespread of which is to detain the arrested person in custody without producing them before a magistrate or other judicial authority. The arrest is often not shown in police records. It is during this period of illegal detention that people are most often subjected to torture and ill-treatment. There are numerous examples of people being picked up by police from their homes, taken to police stations, held illegally and subjected to brutal treatment as a means of extorting confessions, recovering stolen goods or extracting money. Many of those detained in this way are poor and deprived. In many countries, police often illegally detain relatives of 44 ) Resolution 1991/42 of 5 suspects who they are unable to detain as a means of persuading the suspects March 1991. to surrender. 45 ) The Working Group used to publish its annual reports to the Human Rights Commission, The subsequent Sections discuss how relevant human rights standards could and will for the time being, be put into practice to prevent human rights violations. report to its successor the Human Rights Council. WGAD’s reports can be found on: http:// 6.5.2. How to carry out a lawful arrest www.ohchr.org/english/issues/ According to the Body of Principles every “alleged commission of an offence” detention/annual.htm could warrant the arrest of the person responsible. In police practice though, 46 ) Giffard, C., 2000, The not every “alleged commission of an offence” will lead to an arrest.47 The torture reporting handbook, decision as to whether or not to arrest a person depends on many factors, such p.17. 47 ) Rover, C. de, 1998, To serve as the actual offence, the behaviour of the suspect, as well as the experience and to protect. and skill of the police ofﬁcer. In some countries a warrant is required, while in Arrest and Detention 157 others it is left to the police ofﬁcer’s discretion. In some countries national laws give very wide discretionary powers to the police, which may be open to abuse. As with all police powers, the exact practices and legal requirements vary from country to country. As a general rule the law should be clear and speciﬁc about when it is acceptable to carry out an arrest (with and without a warrant), who is allowed to carry out arrests, how arrests should be carried out – including what information should be provided to the person being arrested – and how arrests should be reported. An arrest represents a situation in which the State demonstrates its power in one of its most distinct ways. An arrest is an uncomfortable situation for any person. The arrest may cause resistance, both verbal and physical, from the person being arrested. Police ofﬁcers must be aware of this and the feelings an arrest may invoke, such as fear, shame, loss of control, anger and aggression. As an arrest tends to be a ‘physical situation’ – the police literally laying their hands on the arrestee – an arrested person is extremely vulnerable to abuse during an arrest. An arrest must be based on a reasonable, lawful, suspicion that a person has committed, or is planning to commit, an offence deﬁned as unlawful in law. It must be in compliance with the basic principles of proportionality, subsidiarity, legality and necessity. Compliance with these principles requires an ofﬁcer to know the law and procedures as well as to have the correct attitude and aptitude and the appropriate professional technical and social skills. Training and experience are needed to develop the capacity of police ofﬁcers to distinguish between different situations and adapt reactions to the circumstances of the situation at hand. Police should be trained thoroughly in how to make use of open- and closed-hand techniques and equipment such as handcuffs and pepper sprays, so that their use does not cause additional stress to the arrestee. It is a common observation that those police ofﬁcers using disproportionate force tend to be those who feel insecure or are less competent than their colleagues who use less force. It is important to regularly assess and evaluate how arrests are carried out. Excessive use of force and complaints of excessive use of force, especially when these are recurrent, should be discussed in performance appraisals with police ofﬁcers. New methods or equipment should always be carefully monitored and evaluated. The police should be allowed to arrest a person without a warrant only when the suspect is caught ‘in the act’ (in ﬂagrante delicto) or immediately thereafter. This represents the great majority of all arrests. Note that in ﬂagrante delicto is differently interpreted across jurisdictions. In Mexico 72 hours after the crime was committed is still considered ‘in ﬂagrante’ and in Brazil drugs trafﬁcking is considered a permanent crime making arrests possible at any time (clearly this is not in accordance with the spirit of this principle). In general ‘in ﬂagrante’ is understood to be at the most several hours after the actual crime happened. 158 Understanding Policing In all other circumstances a warrant of arrest should be required, in which case the arrest can be planned in advance. The following questions could be considered when planning an arrest: • What kind of person is the arrestee? • Has he or she been arrested before? If so, how did he or she react then? • What is the experience of colleagues with this person? • Is the person expected to try to defend him/herself? • What are the charges against him or her? • Where will the arrest take place? • What to do with people around, e.g. children, family members? Sometimes the police are required to use force in effecting an arrest. Obviously such force should conform to principles of proportionality, necessity and legality. In principle, police should always use the minimum force possible. If injury is caused by such use of force the police should ensure that assistance and medical aid are rendered to the injured or affected person at the earliest possible moment. Firearms may only be used when arresting a person suspected of perpetrating a particularly serious crime involving grave threat to life and only when less extreme means are insufﬁcient to achieve these objectives – this will rarely be so. Sometimes force can be foreseen; for example if the police know the suspect from previous arrests and/or when the arrestee is known to carry arms. In such situations special provisions can be made to prepare the actual arrest, so as to prevent the situation getting out of control. Such special provisions could involve the use of more ofﬁcers, dogs, special arrest squads, etc. Requests to authorize the use of these special provisions should be made to the appropriate hierarchical level in the chain-of-command – the greater the force foreseen, the higher the level. Arrest Squads Some countries use so-called arrest-squads for situations where a violent response is foreseen. Ofﬁcers deployed in such squads receive extensive training on arrest techniques and how to deal with potential reactions. Arrests carried out by such squads are typically characterised by speed. The arrestee is caught by surprise, for example early in the morning or in situations where he or she does not expect to be arrested (such as when driving on the motorway). A bag is sometimes put over their head so as to disorientate them. Arrest squads tend to use rather aggressive techniques, aiming to prevent and avoid further use of force. If arrest squads do make use of additional force it must be authorised by a judicial authority. If arrest squads have been used, their actions should be recorded in full to ensure accountability. Additional force can sometimes be avoided by changing tactical methods. Catching a suspect by surprise (e.g. when he or she is still asleep) is sometimes Arrest and Detention 159 seen to be effective. However, a planned arrest should be as unintrusive as possible under the circumstances – there is no need to create additional stress. For example, if the person to be arrested person has small children it should be considered how to avoid making the arrest at their home. As well as the obvious ethical reasons, there is also a practical reason for doing so: by avoiding tension and showing consideration to the suspect it is more likely he or she will be more co-operative in the suspect interview that usually follows an arrest. A suspect is entitled to know his or her rights.48 The police should make sure that the arrested person knows and understands these rights. At the time of the arrest, the arrested person must be notiﬁed: • Of the reasons for the arrest as well as any charges there are against him or her, in a language he or she understands • Of the right not to confess, not to testify against him- or herself, the right to remain silent • Of the right to legal assistance (of his or her own choosing or to have free legal assistance assigned to him or her) Furthermore the arrested person has the right: • To be presumed innocent • To an interpreter • To examine, or have examined, witnesses against him or her as well as witnesses on his or her behalf • To adequate time and facilities to prepare his or her own defence The police ofﬁcer must bring the suspect before a judicial authority immediately after arrest.49 In some jurisdictions the ﬁrst judicial authority to which the arrestee is brought is a senior police ofﬁcer performing a quasi- judicial function who can authorise the ﬁrst six hours of the detention, after which the detainee must be brought before a ‘real’ judicial authority independent of the police. An arrest is often followed by a body search. “Effective measures should ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched. Persons being subjected to body search by State ofﬁcials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex.”50 A body search can be carried out as an investigative method to ﬁnd information, or evidence, 48 ) Principle 13 of the Body of or as a means to prevent violence if there is a concern that the arrestee has Principles states that arrested weapons or other devices that can be used as weapons, on him or her. Indeed, persons should have their there are different types of body searches, with varying levels of intrusiveness, rights explained to them. 49 ) “More precise time limits hence requiring different levels of authorisation. The least intrusive is patting are ﬁxed by law in most States down someone’s clothes. The next is scanning someone’s clothes. Far more parties and, in the view of intrusive is requiring the arrested person to undress and undergo a strip the Committee, delays must search. Most intrusive is a search of the body’s oriﬁces, which usually happens not exceed a few days.” HRC, when searching for drugs. Note that the UK’s ACPO website, referred to General Comment No.13. 50 ) HRC, General Comment previously, contains a Stop and Search Manual comprehensively discussing No.16, para.8. various aspects of searches. 160 Understanding Policing The police can be held to account for the way they carry out an arrest. As referred to under 6.2.1 above, they must duly record • The name of the arrested person • The place of the arrest • The time of the arrest • The reason for the arrest and charges against the arrested person • The identity of the concerned police ofﬁcer • Information on the place of custody, including its exact location • Details of the ﬁrst appearance of the arrested person before a judicial or other authority These records should be shared with the arrested person and/or his counsel. 6.5.3. How to carry out lawful police detention As referred to above, the Standard Minimum Rules specify rules for accommodation, personal hygiene, clothing and bedding, food, exercise and sport, and formulate articles concerning staff and management of all detention centres. This includes police detention. In the section on ‘Prisoners Under Arrest or Awaiting Trial’ (part II, section C), Rules 84-93 formulate particular principles for police detention. We recommend that the reader take note of the full text of these Standard Minimum Rules. We also recommend that readers study the full text of the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment in relation to police detention. In some countries, due to a lack of prisons, police detention facilities are used as if they are prisons. Needless to say, in such situations these facilities should comply with the requirements set out in international law. Our focus in this Resource Book however, is on pre-trial police detention. When in police detention following arrest, a person has not yet faced trial and as such is still to be presumed innocent and therefore treated as such. Only detainees that are expected to be in the police cell for a short period of time (one or two days) should stay at the police station, while detainees who are expected to stay detained for a longer period of time, should be taken to an ofﬁcial detention facility, for example a separate wing in a prison. Police detention is not a punitive measure, but should be used only for the sake of the investigation or to prevent the suspect escaping trial. Often detention – deprivation of liberty – is accompanied by deprivation of other rights as well. Most notably the right to privacy is at risk, but also the rights not to be discriminated against, the right to education, to freedom of religion, and expression and the right to information are also in jeopardy. This is often justiﬁed as being a natural consequence of being deprived of liberty. However: “this is neither correct nor are they allowed. Only the imposition of measures which are strictly required for the purpose of the detention or to prevent hindrance to the process of investigation or the administration of justice, or for the maintenance of good order in the place of detention is admissible.”51 51 ) Rover, C. de, 1998, To serve The basic presumption of human rights standards in general, but especially and to protect, p. 243. those relating to situations in which the individual ﬁnds him or herself at the Arrest and Detention 161 ‘mercy’ of the all-powerful State (as in the case of detention), is that the State must treat those under their control with humanity and with respect for their inherent dignity. This is a fundamental and universally applicable principle that may not be made dependent on the material resources available in the State. This rule must be applied in a non-discriminatory manner.52 Some of the rights and obligations relating to police detention include the following: • If a detainee so requests, he or she shall if possible be detained reasonably near her or his usual place of residence.53 52 ) HRC, General Comments • Places of detention must be recognizable as such. The place of No.21, para.4. detention shall be recorded, including all transfers .54 53 ) Body of Principles, • The European Code of Police Ethics requires that “Police cells shall be Principle 20. 54 ) Body of Principles, of a reasonable size, have adequate lighting and ventilation and be Principle 12; Declaration on equipped with suitable means of rest.”55 The value of these criteria is the Protection of All Persons not to be underestimated, as police cells tend to be quite from Enforced Disappearance, uncomfortable. Article 10; International Convention for the Protection • Article 6 of the UN Code of Conduct states: “Law Enforcement Ofﬁcers of All Persons from Enforced shall ensure the full protection of the health of persons in their Disappearance, Article 17 (not custody and, in particular, shall take immediate action to ensure yet into force). The Standard medical attention whenever required.” The detainee has the right Minimum Rules furthermore state minimum criteria for to a proper medical examination upon arrival. Thereafter, medical these transfers such as that care shall be provided when necessary, free of charge. She or he has, this should not expose the upon conditions, the right to a second medical opinion. A record shall detainees unnecessarily to be kept of the medical examination, the name of the doctor and the public view (see Rule 44). 55 ) European Code of Police results.56 The detainee may choose to be treated by her or his own Ethics, Article 56. doctor or dentist, at his or her own expense.57 56 ) Body of Principles, • Minor dependants of the detainee who would otherwise be Principles 24-26. unsupervised shall be assisted or given appropriate care.58 57 ) Standard Minimum Rules, • Men and women should be kept separately, insofar as possible. Rule 91. 58 ) Body of Principles, Similarly, the ofﬁcers in charge should be of the same sex, insofar as Principle 31. possible. 59 Standard Minimum Rules, • Detainees have the right to receive educative, cultural or informative Rules 39, 40, 90; Body of material as well as be informed about important news.59 Principles, Principle 28. 60 ) Standard Minimum Rules, • Detainees have the right to manifest/practice their religion.60 Rules 41-42. • Detainees should have the opportunity to work if they choose and to 61 ) Standard Minimum Rules, be paid for such work.61 Rule 89. • Detainees have the right to have their own food procured at their own 62 ) Standard Minimum Rules, Rule 87. expenses from outside.62 63 ) Standard Minimum Rules, • Detainees have the right to wear their own clothes, and if a uniform, it Rule 88 shall be different from the uniform of convicted prisoners.63 64 ) Standard Minimum Rules, • Detainees have the right to retain property.64 Rule 43. 65 ) Standard Minimum Rules, • Disciplinary procedures against the detainee are required to be Rules 27-32; Body of Principles, speciﬁed in law or legal regulations.65 Principle 30. • Instruments of restraint shall never be used for punishment. Chains or 66 ) Standard Minimum Rules, irons shall not be used.66 Rules 33-34. 67 ) Basic Principles , Principles • Firearms shall not be used against detainees, except when strictly 9 and 16. unavoidable to protect life67 – this will be rare in police detention 162 Understanding Policing 68 ) Body of Principles, situations. Use of force or ﬁrearms must always be reported and Principle 34. subject to review. In case of death, or disappearance, of the detainee, 69 ) The text in this box is based on personal communication while in detention or shortly thereafter, a judicial or other authority with Mr. G.P Joshi, CHRI, Police shall hold an inquiry.68 Indeed, some countries have incorporated such Program Coordinator, India. The a requirement for an independent inquiry into their national legislation. court case is known as the ‘D.K. Basu Case’. For more information Note that police detention can lead to an increased risk of detainees we refer the reader to the full text of the court ruling. Writ attempting to commit suicide. Police detention facilities must not facilitate this. Petition (Criminal) No.539 of There should be no objects to which someone may hang him or herself, and 1986, with Writ Petition (Criminal) clothes that may be used to aide suicide (such as shoe laces, belts, sheets etc.) No.592 of 1987, Decided On: should be removed. 18.12.1996. D.K. Basu v. State of West Bengal. Supreme Court of India In 1997 an important judgement was delivered by the Supreme Court of India seeking to provide safeguards for those arrested and detained.69 The judgement made it mandatory for the police ofﬁcers to: • Bear accurate, visible and clear identiﬁcation and nametags with their designations at the time of arresting a citizen; • Prepare a memo of arrest mentioning the date and time of arrest and attested by an independent witness and countersigned by the arrested person; • Inform the arrested person of his right to have a friend or relative informed about his arrest and the place of custody and to inform the friend or relative if he lives outside the district or town; • Make an entry in the diary at the place of arrest and detention; • Get the arrested person, if he so requests, medically examined at the time of arrest and record his injuries in an Inspection Memo and to give a copy of the Memo to the arrested person; • Subject him to medical examination every 48 hours during his detention in custody; and • Send information of the person’s arrest and detention to the police control room in district and state headquarters. • Send copies of all documents including the arrest memo to the area magistrate for their record. 6.6. Summary Human rights oriented policing also means carrying out arrests and detentions where necessary in accordance with human rights principles, the most important of which are non-arbitrariness, the presumption of innocence, ‘fair trial’ and ‘equality of arms’ and the absolute prohibition of torture and other cruel, inhuman or degrading treatment. The period just following arrest and detention is when a detainee is most at risk from police abuse. It is for this reason that oversight by independent committees that regularly visit places of detention is considered an important preventive measure. It should be clear Arrest and Detention 163 that arrest and detention are only lawful when these are carried out within the framework of law; police actions causing additional harm (such as the use of shackles), or that lead to additional punishment (such as preventing someone from exercising his or her right to religion) are prohibited as the person is still presumed to be innocent and as such may only be subject to those restrictions necessary to the ongoing investigation. In recent years there have been concerns about an increase in legislation that facilitates administrative and preventive detention as a means of addressing terrorism. These are often accompanied by in communicado detention and lead to human rights violations. Such forms of detention are only lawful if these accord with the respective principles set out in international human rights law. A lawful arrest means the arrestee is promptly informed of all his rights, receives the information necessary to prepare for a defence, and is treated with minimal force. This requires careful preparation of the arrest, and well- trained ofﬁcers whose conduct is evaluated regularly. Police detention, which is only to be carried out if the investigation so requires, should be short. Detainees are to be presumed innocent and should be treated as such. © ANP Science Photo Library 164 Understanding Policing No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment Article 7, International Covenant on Civil and Political Rights Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law Article 14 (2), International Covenant on Civil and Political Rights No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation Article 17 (1), International Covenant on Civil and Political Rights Every law enforcement ofﬁcial is part of the criminal justice system, the aim of which is to prevent and control crime General Assembly Resolution 34/169 adopting the UN Code of Conduct for Law Enforcement Ofﬁcials, 17 Dec. 1979 Criminal Investigation 165 7. Criminal Investigation 7.1. Introduction One the main objectives of policing is to detect crime. Depending upon the jurisdiction, a criminal investigation can be initiated by police themselves or it can be ordered by a prosecutor. Similarly, a criminal investigation can take place under judicial authority (a prosecutor or an investigative judge) or can be carried out under police authority and subsequently handed over to the prosecution services for trial.1 The international legal framework speciﬁes minimum rights and formulates fair trial guarantees, thereby deﬁning the limits of State power in relation to its citizens. However, it does not provide clues as to how criminal investigations should be carried out or specify their objectives. In Section 7.2. of this Chapter we will ﬁrst discuss the international human rights principles relevant to criminal investigations. In Section 7.3. we will look at what the international human rights standards do not say about criminal investigations. Section 7.4. looks at criminal investigation as part of police practice. It discusses various methods of investigation and how police decide when to choose what method. In Section 7.5. we focus on suspect interview as an investigative method as it is during suspect interviews that human rights violations often occur. We will close with a brief summary. Note that the focus of this Chapter is on police investigation of crimes committed by members of the public. Obviously the same principles apply when investigating criminal offences (including human rights violations) committed by police ofﬁcers themselves. English terminology: • The terms ‘suspect’ and ‘accused person’ are sometimes, wrongly, 1 ) Article 11 of the UN used interchangeably. ‘Accused person’ requires the person to be Guidelines on the Role of formally accused. Police tend to use the word ‘suspect’. The media Prosecutors: “Prosecutors shall perform an active role in sometimes refer to a ‘criminal’ or an ‘offender’ rather than a ‘suspect’, criminal proceedings, including thereby violating the principle of the presumption of innocence. institution of prosecution • The terms ‘interrogation’ and ‘suspect interview’ are used and, where authorized by interchangeably. The term ‘suspect interview’ more appropriately law or consistent with local practice, in the investigation reﬂects the use of interview as a professional policing tool. The of crime, supervision over the term ‘interrogation’ tends to have a more negative connotation. legality of these investigations, The phrase ‘questioning a suspect’ is often used as a synonym for supervision of the execution suspect interview. In relation to this, it is important to distinguish of court decisions and the between the arrest and the suspect interview: The suspect interview exercise of other functions as representatives of the public is an investigative method to collect information that can be used at interest.” trial. An arrest is one step within the legal process of bringing someone 166 Understanding Policing to trial for an offence. A suspect interview can take place prior to the arrest, after arrest or the arrest can take place during the interview itself. 7.2. Key human rights principles relevant to criminal investigation and suspect interview • Presumption of innocence.2 “By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the beneﬁt of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is therefore a duty for all public authorities to refrain from prejudging the outcome of a trial.”3 The right to remain silent is inherent to the presumption of innocence.4 • Absolute prohibition of torture and other cruel, inhuman or degrading treatment.5 2 ) ICCPR, Article 14 (2); Body of “No detained person while being interrogated shall be subject to Principles, Principle 36. violence, threats or methods of interrogation which impair his/her 3 ) HRC, General Comments No. capacity of decision or judgment.”6 Information obtained through 13, para.7. torture or other forms of coercion is not to be accepted as evidence in 4 ) AI, 1998, Fair Trials Manual, Chapters 9 and 16. Note that court.7 The UN Human Rights Committee has made clear that anyone Article 55(2)b of the Rome involved in torture or cruel, inhuman or degrading treatment “whether Statute (establishing the by encouraging, ordering, tolerating or perpetrating prohibited acts, International Criminal Court) must be held responsible. Consequently, those who have refused states that remaining silent will not be “a consideration in to obey orders must not be punished or subjected to any adverse the determination of guilt or treatment.”8 Torture should be a criminal offence under national law.9 innocence”. • The right not be compelled to testify against himself or to confess 5 ) CAT; ICCPR Article 7. CAT guilt.10 deﬁnes torture in its art. 1. • Non-arbitrariness.11 The offence to be investigated must be deﬁned 6 ) Body of Principles, Principle 21(2). as criminal in national law and the police may use their investigative 7 ) CAT, Article 15; Principle 27 powers only insofar these are covered by law and in accordance with of the Body of Principles states: the legal provisions, stated in national and international law. “Non-compliance with these Investigative methods used must be used lawfully.12 principles in obtaining evidence shall be taken into account in • Right to privacy/conﬁdentiality.13 “(…) law enforcement ofﬁcials determining the admissibility obtain information which may relate to private lives, or may be of such evidence against potentially harmful to the interests, and especially the reputation, of a detained or imprisoned others. Great care should be exercised in safeguarding and using such person.” 8 ) HRC, General Comment No. information, which should be disclosed only in the performance of duty 20, para. 13. or to serve the needs of justice (…).”14. And: “(…) no interference can 9 ) CAT, Article 4. take place except in cases envisaged by the law. Interference authorized 10 ) ICCPR, Article 14 (3)g. by States can only take place on the basis of law, which itself must 11 ) ICCPR, Article 9. 12 ) Body of Principles, comply with the provisions, aims and objectives of the [ICCPR]”.15 Principle 9. • Right to a fair trial.16 A suspect is entitled to a fair trial, based on the 13 ) ICCPR, Article 17. principle of ‘equality of arms’ between the parties in a case (see also 14 ) UN Code of Conduct, section 6.2.1). To have a fair trial, a professional investigation needs to Commentary to Article 4. have taken place. A suspect is entitled to know his/her rights: 15 ) HRC, General Comment No.16, para. 3. · To know charges against him/her 16 ) ICCPR, Article 14. · To an interpreter Criminal Investigation 167 · To adequate time and facilities to prepare her/his own defence · To legal counsel · To be brought before a judge promptly Police ofﬁcers responsible for the suspect interview must explain these rights to the suspect prior to the interview. In some jurisdictions this should (also) be done by a prosecutor or a judge. • Trial without undue delay.17 As the trial must be held within a reasonable time, this can be taken to mean that the investigation needs to be conducted promptly and swiftly. This is a relative matter of course. Investigations may take many months (or years), and consequently suspects may, lawfully, be in pre-trial detention for a long period of time. • The right to lodge complaints against ill-treatment and other abuses and the right to compensation must be recognised in domestic law.18 Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective.19 The Human Rights Committee further states that statistics on the number of complaints and how they have been dealt with should be recorded.20 • Recording of interview characteristics and location. The identity of the interviewers and other persons present shall be recorded.21 The time and place of all interviews shall be recorded and this information 17 ) ICCPR, Article 14 (3)c; Body shall also be available for purposes of judicial or administrative of Principles, Principle 38. proceedings.22 Provisions should be in place to avoid in communicado 18 ) CAT, Article 13 and 14; detention. Any place of detention must be free from any equipment Body of Principles, Principles 33 and 35. liable to be used for inﬂicting torture or ill-treatment.23 The duration of 19 ) CAT, Article 13; (HRC) the interviews as well as the intervals between them shall be General Comment No.20, recorded.24 para.14. • Non-discrimination is at the heart of all human rights principles. More 20 ) HRC, General Comment No. 20, para. 14. speciﬁcally access to justice and the right to a fair trial, including the 21 ) Body of Principles, right to be presumed innocent, are to be enjoyed by women on equal Principle 23 (1). terms with men.25 Women must have direct and autonomous access 22 ) HRC, General Comment to the courts, to act as witnesses and have access to legal aid, No.20, para. 11. including in family matters.26 23 ) Ibid. 24 ) Body of Principles, • Review and monitor. “Each State Party shall keep under systematic Principle 23 (1). review interrogation rules, instructions, methods and practices (…).”27 25 ) CEDAW. Article 15. Compliance with this far-reaching article requires there to be a 26 ) HRC, General Comment systematic method for police interviewing in place that is taught to the No. 28, para.18. 27 ) CAT, Article 11. interviewers and is regularly assessed. 28 ) CERD, Part I, Articles 4-6. • International standards require the State to investigate particular 29 ) CEDAW, Article 6. types of crime including: 30 ) CRC, Articles 11, 34, 35. · Racism/discrimination. These crimes are to be made punishable. This 31 ) Principles of Effective Prevention and Investigation implies that police ought to investigate offences of this nature.28 of Extra-Legal, Arbitrary and · Women trafﬁcking and exploitation of women for prostitution.29 Summary Executions · Abuse, exploitation and illicit transfer of children.30 32 ) Declaration on the · Extra judicial, arbitrary and summary executions.31 Protection of All persons from Enforced Disappearance. · Enforced and involuntary disappearances.32 168 Understanding Policing 33 ) Basic Principles, • In training special attention should be given to issues of police ethics Principle 20. and human rights, especially in the investigative process.33 34 ) The Rome Statute (Article 18(1)) mentions that the prosecutor must have ‘a Prosecution and punishment of criminal offences related to an armed non- reasonable basis’ to commence international conﬂict are covered by Article 6 of the 2nd Protocol of the Geneva an investigation. Jurisprudence Conventions, which reiterates the principles of fair trial. will need to develop as to what is considered ‘reasonable’. Note that there is jurisprudence available relating to regional 7.3. What the standards don’t say and national courts. The international human rights standards formulate key principles for how 35 ) The Rome Statute does police should carry out criminal investigations. However, questions remain, have such a provision (Article 55(2)d): “to be questioned in including: the presence of counsel”. 36 ) ICCPR, Article 14 (e). • There is no guidance on when a person may lawfully be considered a 37 ) For example, the Rome suspect.34 Statute, in Article 66(3), states: “In order to convict the accused • Though the suspect has a right to legal counsel, it is nowhere stated the court must be convinced of that legal counsel should be present at the suspect interview.35 the guilt of the accused beyond • There is a right for the suspect to hear witnesses against him or reasonable doubt” but gives no her as well as witnesses on his or her behalf (à charge and à further guidance. 38 ) “Even with regard to décharge)36, however there is no requirement that the police must interferences that conform to actively seek witnesses on his or her behalf or in any other way seek the [ICCPR], relevant legislation counterevidence. must specify in detail the • Though the law in most countries prohibit the use of evidence obtained precise circumstances in which such interferences may under torture in court, there is no guidance on what may be considered be permitted. A decision to sufﬁcient evidence for someone to be proven guilty ‘beyond make use of such authorized reasonable doubt’.37 Of course, this is not a matter for the police as interference must be made only such. However when a confession is sufﬁcient for an accused person by the authority designated to be found guilty, this may trigger the police to secure confessions at under the law, and on a case- by-case basis. Compliance any cost. Note that in such situations lobbying for legislative changes with article 17 requires that may prove more effective than targeting police behaviour. the integrity and conﬁdentiality • There is no guidance on what investigative methods the police may of correspondence should use and under what conditions, beyond references to the rights to be guaranteed de jure and de facto. Correspondence privacy, liberty, presumption of innocence and the overall requirement should be delivered to the to be treated humanely. General Comment 16.8 of the Human Rights addressee without interception Committee makes some remarks on electronic and other forms of and without being opened or surveillance as well as searches of persons and property and is worth otherwise read. Surveillance, whether electronic or reading.38 otherwise, interceptions of telephonic, telegraphic and other forms of communication, Rome Statute (establishing the International Criminal wire-tapping and recording of conversations should be Court) prohibited. Searches of a In relation to some of the above-mentioned issues, the Rome Statute is more person’s home should be speciﬁc than the international human rights standards. However, it should be restricted to a search for emphasised that the Rome Statute covers investigations into very speciﬁc necessary evidence and should crimes (genocide, crimes against humanity, war crimes and the crime of not be allowed to amount to harassment.” aggression, committed after 1 July 2002) taking place under the jurisdiction of the International Criminal Court (ICC). For more information see the ICC’s website at: http://www.icc-cpi.int Criminal Investigation 169 7.4. How to carry out criminal investigation 7.4.1. Introduction As indicated above, international human rights standards say what the police are not allowed to do, but are quiet when it comes to what police can do. This gap can be ﬁlled with national regulations, Standard Operational Procedures (SOP’s) and training. Particularly in relation to criminal investigations of a more complex nature, police sometimes simply do not know how to conduct an investigation professionally. Below we will discuss some principles of professional investigation. For obvious reasons we will be concise. 7.4.2. Aim of the investigation The aim of any investigation should be to gather information aimed at obtaining the truth about what has happened. The information gathered provides so-called ‘tactical clues’: pieces of information that can be used tactically to guide the investigation. Examples of tactical clues include: the type of shoes the suspect wore, various details of the scene of crime and information that is only known to the offender. Tactical clues are not necessarily the same as evidence: evidence is only that part of all available information used in court for proving someone’s guilt. For information to be used as evidence it needs to meet the legal requirements as stated in law necessary to convince the court of the suspect’s guilt. Needless to say the suspect does not have to share this objective of truth-seeking; indeed criminal investigation typically involves two (or more) parties with opposing interests. Countries differ in their requirements in relation to evidence. These different requirements are generally set out in legal ‘rules of evidence’. This Resource Book will not include the extensive detail of laws of evidence and related issues of standards of proof and burden of proof, which are clearly related to police investigation practices. As a general rule one could say: “one piece of evidence is not evidence.” A confession, however convincing, should never sufﬁce as evidence. Any piece of evidence always needs to be backed up by at least one other source of information. This is especially important for evidence obtained during (suspect or witness) interviews as such information is easily manipulated (i.e. interpreted falsely, twisted, or obtained in such way that it impaired the interviewee’s “capacity of decision or judgement”) and should therefore always be veriﬁed. It needs to be proven ‘beyond reasonable doubt’ that the suspect is the offender. In some jurisdictions, for example in the Netherlands, there is an additional requirement that evidence needs to be ‘lawful and convincing’. Rules of evidence as formulated in the Model Code of Criminal Procedure The Model Code of Criminal Procedure (see introduction to Part III of this Resource Book) includes the provision that the mental and physical elements of a criminal offence must be proven “beyond reasonable doubt”. It also states 170 Understanding Policing that the burden is on the prosecutor to meet the requisite standard of proof (i.e. beyond reasonable doubt). The Model Code of Criminal Procedure provi- des that a confession will not be admissible evidence if it can be proven that the confession was obtained through torture, cruel, inhuman or degrading treatment or through coercion. The underlying reason for the inclusion of this particular rule is the fact that the use of confessions obtained through torture has often been found to be a pervasive practice in post-conﬂict states. Another provision requires that the judge or judges, in deciding upon the criminal res- ponsibility of an accused person, must not base their determination of criminal responsibility solely on a confession. The court must rely on other evidence to substantiate a ﬁnding of “criminally responsible”. The accused is granted the right to call or have called and examined witnesses in his or her favour. Where he or she has engaged defence counsel, or has been assigned defence counsel through free legal aid, counsel may call witnesses in defence of the accused person. 7.4.3. Start of an investigation An investigation starts with a reasonable suspicion a crime has been committed. It requires police to have knowledge about the alleged act and, even more important from a human rights perspective (especially when advocating that police perform with due diligence), it requires the police to know what acts are to be considered a crime. This is as much a legal issue as it is a cultural attitudinal matter. If police perceive something as ‘common behaviour’ they will not be inclined to label it a crime, nor will they feel the need to act upon it. This is especially relevant in the context of policing vulnerable groups and violence against women. Many such crimes are simply not labelled a crime, resulting in a passive police response. Note that a passive response, or rather inaction, is sometimes actively sought through bribery or other means. Indeed, organized crime networks, and others, spend major resources on ensuring that police turning a blind eye to crime. Such corrupt practices should be of equal concern as other forms of police passivity from a human rights perspective. Police know an alleged crime has been committed through: • Observation • A victim or witness reporting a crime • An offender turning himself in • ‘Silent evidence’ (for example, broken shop windows, a dead body) The police do not investigate all crimes. Some crimes are allowed to go ignored, either because society does not consider them crimes (see above), or because they have ceased to be crimes (e.g. public drunkenness), because they aren’t a priority for police (e.g. petty crime) or simply because police lack the time to initiate an investigation. In some jurisdictions the decision to initiate an investigation lies with the Criminal Investigation 171 police or prosecution service. In other countries, an investigation must be initiated whenever police are made aware that a crime has taken place. The role of the prosecutor also varies in different jurisdictions. In the accusatorial (or adversarial or common law) system, including the US, UK and many former British colonies, the police conduct the investigations under their own authority and hand the evidence over to the prosecution when the investigation is complete. In the inquisitorial system, which includes France and many other continental European countries, the police conduct an investigation under the authority of the prosecutor or an investigating judge who has an active role in supervising the (legality of the) investigation as well as the investigative methods used, before the case is brought to trial. In the accusatorial system the prosecutor’s role is limited to the actual prosecution itself: bringing the case to court. Note that the difference between the two systems has been discussed also in Chapter 2. Organized crime In more and more countries both police and the public are confronted with an ever growing inﬂuence of organized crime, typically involved in crimes such as drugs and human trafﬁcking, money laundering and weapons smuggling. As the revenues for organized crime networks are immense, so are their efforts to keep them going. The best way to ensure against prosecution is to simply prevent police from initiating an investigation at all. Indeed, corruption is a major problem in this regard, as organized crime networks tend to be able to afford large sums of money, and other services, with which to bribe police and prosecution ofﬁcials and/or witnesses. They also tend to have various means available to threaten both police and public and prevent interference in their activities. Indeed, corruption and obstruction of justice, and hence the necessity for witness protection, are all included in the UN Convention against Transnational Organized Crime, as adopted by the General Assembly in 2000 and which entered into force in 2003.39 Organized crime networks can be a serious threat to the rule of law, the maintenance of public order and ultimately 39 ) Resolution A/RES/55/25. to the continuity of the State itself. 7.4.4. Methods of investigation 7.4.4.a. Gathering information In reality, any method that leads to the collection of relevant information can be termed an investigative method. This information may be ‘overt’, available from ‘open sources’ accessible to all members of the public (such as newspapers, telephone books, internet etc.). The police may also use covert sources such as the municipal administration and information retrieved through methods (lawfully) used only by the police, such as secret informers. Examples of investigative methods are (in an arbitrary order): • Witness interview • Door to door inquiries • Crime reconstructions • Confrontation (with photographs of potential offenders or in a line-up) 172 Understanding Policing • House search • Suspect interview • Body search • Wire tap (telephone, fax, e-mail, internet) • Undercover agents • Surveillance • Informers • Forensics Investigative methods differ in how effective they are in securing information and in how intrusive they are. There are two general rules of thumb: • The requirement for authorisation to employ a particular investigative method should increase in proportion to the degree of intrusiveness. In the case of intrusive investigative methods their lawfulness may require the independent assessment of a judge (either prior or subsequently). Note that under the inquisitorial system, criminal investigations take place under the authority of an investigative judge who authorises police actions, including the use of particular investigative methods. • An investigative method should only be used for a particular purpose, i.e. obtaining information about a certain crime, speciﬁed in advance. It should be carried out in such a way that it causes minimal harm to person and property (for example if police are looking for a certain piece of paper, a house search will be carried out more rigorously than when looking for something large such as an automatic gun). Searches of a person’s home should be restricted to a search for necessary evidence and should not be allowed to amount to harassment.40 PLAN principles referred to in Chapter 5 are applicable to investigative powers of the police. Police should ask themselves: is the investigative method used proportionate to the offence committed, is it lawful and is it necessary to obtain the information, and is their no method available that is less intrusive (subsidiary)? Moreover, can the police be held accountable for the method used and how was it implemented? 7.4.4.b. The use of forensics Forensic information covers photographs, ﬁngerprints, ear prints, DNA, traces or imprints of devices used for a particular crime, IT-techniques, chemical analyses, ﬁre investigation etc, in fact any kind of ‘physical’ information about the actual offence not taken from suspect or witness interviews. Police ofﬁcers with special technical training usually carry out basic forensic investigations (ﬁngerprints, traces etc.). The collection of this kind of information is often restricted to the scene of crime but this need not be. In many developing countries, forensic science is not used much to help 40 ) HRC, General Comment investigations, partly because of lack of faith on the part of investigative ofﬁcers No. 16, para.8. that the use of such methods will help them in solving the case speedily and Criminal Investigation 173 partly because of lack of skill and a lack of forensic science facilities at police station levels.41 Moreover, in some countries courts do not accept forensic data as evidence. Human rights advocates often recommend an increased use of forensic information (i.e. enhancing forensic skills and facilities) as a means of preventing over-reliance on suspect interviews. Indeed, forensic information tends to be more objective and less susceptible to manipulation. However, as always, it depends on how police deal with this kind of information. If forensic information is only sought to conﬁrm that the suspect is the offender (i.e. only used à charge) it doesn’t support the principle of a fair trial. So-called ‘silent’ forensic evidence is rarely sufﬁcient to explain entirely what happened; it needs interpretation to explain cause and effect relationships and hence to establish the identity of an offender (as we will see later in this Chapter when discussing suspect interview). In relation to speciﬁc forensic techniques (such as medical examinations), police often seek the help of experts. These experts are not by deﬁnition impartial: sometimes they work for the police, sometimes they are appointed by a court. Experts may cover any ﬁeld appropriate to a particular investigation. These may include academics, psychologists, accountants, IT specialists but in some cases even graphologists and telepathists may be requested to help obtain new information or help in interpreting available information. Again, forensics may be used to guide the investigation, or may be used to build up evidence. When the latter is the case, the suspect should be entitled to request a second opinion on the interpretation of evidence. 7.4.4.c. Scene of crime This is how police refer to the actual location where the crime was committed or where evidence is to be gathered. As such, there may be more than one scene of crime for one crime (e.g. someone might be murdered at home but the body removed to another place). The scene of crime is vital for collecting evidence, as it is here that shoeprints, ﬁngerprints, DNA material such as hair etc, can be found that may give clues as to what happened and who was present. As such it is of utmost importance that the scene of crime is secured while police are carrying out their investigation. Securing the scene of crime means nobody, including the police, walking through it, touching anything or in any other way destroying or interfering with potential evidence. It is common practice to cordon off the scene of crime and protect it as long as the investigation continues. The ﬁrst minutes are the most important as traces disappear rapidly. Not surprisingly, it is in this area that there is often much to gain by improving criminal investigation techniques of police. The value of forensic, ‘hard’, information cannot be overstated. 7.4.5. When to choose what to do Police work within a legal framework, telling them what acts to investigate (set 41 ) Based on personal out in the Penal Code) and how to do so (set out in the Criminal Procedures communication with Mr. G.P Joshi, Commonwealth Human Code). As argued above, the more intrusive an investigative method is (not just Rights Initiative, Police Program for suspect but also his family and others) the stricter should be the regulations Coordinator, India. to which the police must adhere. 174 Understanding Policing Within this framework established in law, the police make tactical decisions as to what investigative method is expected to be effective. Even when it is acceptable legally to use a certain investigative method, it may tactically still not be wise to use it, for example because it may result in the suspect knowing he or she is ‘under investigation’. Finally, police must be skilful at carrying out these tactical decisions, they must be well trained in social, technical and legal skills, and evaluate their experience regularly. In other words: a police ofﬁcer may lawfully be allowed to arrest a suspect and bring him to the police station for a suspect interview, and may consider it tactically the appropriate time for doing so, but he or she also needs to know how to do so. The ﬁgure below visualizes how police actions are ‘framed’ by law, tactics and skills. Police effectiveness is dependant on how these three relate, i.e. how the police implement the tactical decisions bound by the legal framework. �� 7.5. How to carry out a suspect interview Suspect interviews are often shrouded in mystery and secrecy; reinforced by the scarcity of police literature about the actual practice of suspect interviewing (note that Amnesty International’s Fair Trials Manual has a (brief) Chapter (Chapter 9) on suspect interview focusing on the rights of the interviewee). Police tend to consider skills in suspect interviewing as part of the craftsmanship of a police ofﬁcer: you either “have it” or you don’t. Maybe this also explains why police tend to think they are far more successful in 42 ) Hartwig, M., P.Anders and A.Vrij, 2005, “Police suspect interviews than they are in reality. Police tend to think they are more interrogation from a social competent than others in detecting whether someone is lying – which they are psychology perspective.”. not.42 43 ) The contents of this Chapter are for a large part based on the author’s personal First and foremost a suspect interview is a professional tool that should be expertise as a former trainer of based on good investigation and proper use of communication skills. ‘Tricks’ criminal investigators. are often more counterproductive than helpful.43 A suspect interview’s Criminal Investigation 175 ﬁrst objective is to collect information to uncover the truth. As such, it is an investigative method just like those discussed above. Still, many police ofﬁcers tend to think that the aim is to extract a confession from the suspect (regardless of what the truth is). An important and convincing argument against this line of thinking is that when the wrong person confesses, the real offender is still out on the streets, potentially committing other crimes. Secondly, a suspect interview is not meant to humiliate or punish someone. In order for a suspect interview to achieve its objective, it is vital that the suspect can make his or her statement freely, without coercion, or as stated in the Body of Principles: without impairing the interviewee’s “capacity of decision or judgement.”44 Indeed, during suspect interview the suspect is still to be presumed innocent and should be treated as such. Police ofﬁcers may sometimes argue that the ‘use of force’ is needed – and thus proportionate – in a suspect interview to extract the relevant information, reasoning that it is therefore not ‘torture’. Obviously such reasoning can never be acceptable. However, it should be noted that some police sincerely do not know how to obtain information from a suspect without relying on force. The following section therefore seeks to provide some guidance on how a suspect interview can be carried out lawfully and professionally. Please note that there are numerous different methods and theories concerning suspect interview. The guidance given below is not given as a blueprint but rather aims to demystify suspect interviews and erode the assumption on the part of some that a degree of force is always necessary. Taking ‘undue advantage’ of the interview situation is prohibited, as stated in Principle 21 of the Body of Principles. However, a suspect interview is, by its very nature, an extremely unpleasant situation for the suspect. This in itself will create pressure on the suspect, which the police will make use of for tactical reasons. The question is where this level of pressure becomes unacceptable pressure as deﬁned by CAT. The Human Rights Committee has not drawn up a list of prohibited acts or established sharp distinctions between acceptable and unacceptable acts: the distinctions depend on the nature, purpose and severity of the treatment applied.45 For further reading into this topic we refer to Amnesty International’s Combating Torture: A manual for action. In carrying out a professional suspect interview, police make use of what is sometimes referred to as ‘internal pressure’ (as opposed to external pressure’, which is pressure that is inﬂicted by someone else, often resulting in torture or any other form of cruel, inhuman or degrading treatment). Internal pressure is pressure a suspect builds up internally: ‘within his or her own head’ so to speak. In order to carry out an effective suspect interview the investigator must have sufﬁcient and adequate information acting as ‘tactical clues’. These can be used to increase the internal pressure ‘within’ the suspect. The aim of 44 ) Body of Principles, the interview is to verify these clues and get the suspect to make a statement Principle 21(2). 45 ) HRC, General Comment about them as well as to collect new information. Therefore, the ultimate No. 20, para.4. ‘success factor’ for a suspect interview lies with the investigation prior to the 176 Understanding Policing 46 ) Hartwig e.a., 2005, “Police interview, as this is when the investigator gathers the information (including interrogation from a social tactical clues), which guide further investigations. These tactical clues are psychology perspective.” used in the suspect interview to (verbally) confront the suspect with and to test whether he or she is telling the truth. Such confrontations will increase the internal pressure – rendering external pressure (hitting, kicking, switching lights on and off; the list is endless) unnecessary. If the investigation prior to the interview hasn’t been conducted properly there will be insufﬁcient tactical clues, limiting the interviewer’s opportunities to lawfully (and professionally) confront the suspect. Moreover, if the investigation has been carried out properly, there is sometimes sufﬁcient information to make a suspect interview unnecessary altogether. Indeed, the added value of suspect interviews tends to be greatly overestimated by police ofﬁcers. Preparing the interview, including preparation of when to use what clues, is essential, but again this rarely happens, as police tend to (mistakenly) rely on their presumed craftsmanship.46 Professional suspect interviewing can best be explained with an example: Case: There has been a bank robbery. The police have found the ﬁngerprints of someone called Peter on the glass that divides the clients from the bank employees (the ﬁngerprints as well as their exact location are tactical clues). They know Peter doesn’t bank with this particular bank (which is also a tactical clue). Let’s say, for our example, that Peter was indeed the bank robber, something the police will have to ﬁnd out. Below we will describe an example of unprofessional interviewing, followed by an example of how police could carry out a professional suspect interview. An unprofessional way to deal with this suspect would be to go and pick up Peter, tell him he is charged with bank robbery and confront him with the fact that the police have found his ﬁngerprints. “That proves it!” It would be more professional if the police picked Peter up only after having prepared for the easiest answer Peter may give explaining the ﬁngerprint: saying he indeed visited the robbed bank legitimately to collect money. They must try to make it impossible for Peter to get away with such false statements. So, during the interview they ask Peter what he’s been doing over the past week (ideally the police should know the last time the bank was cleaned, say Saturday, and ask Peter what he has been doing since Saturday). They ask him where he usually gets his money. Does he always go the same bank, or does he visit different banks? Questions like these are referred to as ‘surrounding the evidence’. Suppose Peter says he always goes to the (robbed) bank, but hasn’t been there since Saturday. Or Peter may say: he always goes to the same bank, not being the robbed one. Or he may say that last week he was ill and didn’t leave his home. Criminal Investigation 177 Then the interviewers will confront Peter with the ﬁngerprint: “If you haven’t been to this bank the past month, then how is it possible that we have found your ﬁngerprint on the glass window?” Only if this particular tactical clue has been surrounded properly does it make sense to confront, in the sense that it will lead to an increase in internal pressure. No doubt Peter will start to feel very uncomfortable. The example shows what professional interviewing encompasses: • The collection of relevant tactical clues (i.e. the investigation) • The preparation of questions to ‘surround’ the tactical clues so as to prevent the suspect from evading the evidence • The preparation of ‘confrontations’. When confronting, police will always have to ‘give away’ some information available to them. This is a matter of tactics. Careful consideration must be given to what information can be given away and what not Of course this is an overly simpliﬁed image of the suspect interview, but it does show the essence of professional interviewing. Its value is determined by the amount of information the police have collected prior to the actual interview. When interviews go wrong, it is almost invariably due to a lack of preparatory investigation, leading to too few clues, resulting in a suspect that can easily ‘get away with it’. The police should collect tactical clues throughout their criminal investigation, verify these, collect additional information to increase the value of the tactical clues (such as when the bank is being cleaned), foresee ways in which the suspect may attempt to evade the tactical clues they have against him, and prepare the surrounding questions that follow from this. This preparation may lead to the conclusion that they do not have enough information against the suspect. This means further investigation is needed, and there is no point in calling the suspect for interview until the police are ready. Suppose that Peter, in our example, is a truly innocent suspect. Suppose he answers the ‘surrounding’ questions in line with the truth. This may result in new tactical clues for the investigators, which they again will have to investigate in order to verify them. Suppose that Peter is truly guilty and confesses. He walks into the room saying: “Yes, I admit, I did it.” That still doesn’t mean the work is done for the interviewers. It is good practice that they ask Peter what he did exactly, where, when, how, why etc. After all, Peter might withdraw his confession at a later stage in trial. However, if he mentions speciﬁc details of the crime that have been veriﬁed and conﬁrmed by the investigators, withdrawing his confession will not help him. Peter might also be innocent but wishing to take responsibility for the crime. A confession in itself should never be enough to convict someone; it should always be supported by other evidence. 178 Understanding Policing There are several safeguards to ensure that a suspect interview doesn’t derail. Some have been discussed already. Additional safeguards are: • As a rule of thumb it is best practice for the interviewers to have the same amount of rest as the suspect being interviewed and should not be replaced by ‘fresh’ colleagues. • The interviewers should record their own identity and those of others that are present.47 • The entire interview should be taped (on audio-, but preferably videotape).48 • The interview should usually be carried out by two ofﬁcers. ‘The good cop/bad cop’ is no longer considered professional. Both ofﬁcers are to behave professionally, meaning friendly but objective. There is no beneﬁt in offending or frustrating the suspect in any way. He or she should be allowed to sit down and have something to eat and drink as per the relevant local custom. • It is advisable that there should be at least one female interviewer present when women are interviewed. • When the detainee is outside the interview room, this should not to be considered ‘interview time’. Statements made by the detainee outside the interview room are in principal ‘off the record’. The interviewers should not question the suspect outside the interview room (for example in his cell). However, when the suspect makes a statement voluntarily, and is aware of his or her rights, the interviewers will no doubt use this information in the actual interview, as it may provide valuable tactical clues. • It is recommended that police ofﬁcers responsible for the welfare of detainees differ from the ofﬁcers responsible for the investigation. • The ofﬁcers responsible for the interview, who keep a record of the interview, should also record when they have supplied the suspect with food and drinks and at what time they’ve fetched the suspect and returned him or her. Similarly, the ofﬁcers responsible for detention should record when they have supplied the detainee with meals and other requirements. Professional interview techniques such as the one described here can be used against any suspect, whether guilty or innocent, and regardless the nature of the crime. They are neutral and objective and can be used for police ofﬁcers suspected of human rights violations, for men suspected of domestic violence as well as for those said to have committed terrorist crimes. Professionalism in questioning requires the interviewer to keep in mind that the interviewee might 47 ) Body of Principles, be guilty, but might be innocent as well. The interviewer must be self-conﬁdent Principle 23; HRC, General Comment No. 20, para.11. yet open to alternative options. If he or she were in constant doubt, the suspect 48 ) According to the Rules of interview would become impossible. Evidence and Procedure of the Rome Statute (adopted 3-10 September 2002. ICC/ASP1/3. Rule 112) questioning is required to be audio- or videotaped. Criminal Investigation 179 Remarks of the European Committee for the Prevention of Torture (CPT) relating to suspect interview 49: The CPT has on more than one occasion, in more than one country, discovered interrogation rooms of a highly intimidating nature: for example, rooms entirely decorated in black and equipped with spotlights directed at the seat used by the person undergoing interrogation. Facilities of this kind have no place in a police service. In addition to being adequately lit, heated and ventilated, interview rooms should allow for all participants in the interview process to be seated on chairs of a similar style and standard of comfort. The interviewing ofﬁcer should not be placed in a dominating (e.g. elevated) or remote position vis-à-vis the suspect. Further, colour schemes should be neutral. In certain countries, the CPT has encountered the practice of blindfolding persons in police custody, in particular during periods of questioning. CPT delegations have received various – and often contradictory – explanations from police ofﬁcers as regards the purpose of this practice. From the information gathered over the years, it is clear to the CPT that in many if not most cases, persons are blindfolded in order to prevent them from being able to identify law enforcement ofﬁcials who inﬂict ill-treatment upon them. Even in cases when no physical ill-treatment occurs, to blindfold a person in custody – and in particular someone undergoing questioning – is a form of oppressive conduct, the effect of which on the person concerned will frequently amount to psychological ill-treatment. The CPT recommends that the blindfolding of persons who are in police custody be expressly prohibited. It is not unusual for the CPT to ﬁnd suspicious objects on police premises, such as wooden sticks, broom handles, baseball bats, metal rods, pieces of thick electric cable, imitation ﬁrearms or knives. The presence of such objects has on more than one occasion lent credence to allegations received by CPT delegations that the persons held in the establishments concerned have been threatened and/or struck with objects of this kind. A common explanation received from police ofﬁcers concerning such objects is that they have been conﬁscated from suspects and will be used as evidence. The fact that the objects concerned are invariably unlabelled, and frequently are found scattered around the premises (on occasion placed behind curtains or cupboards), can only invite scepticism as regards that explanation. In order to dispel speculation about improper conduct on the part of police ofﬁcers and to remove potential sources of danger to staff and detained persons alike, 49 ) CPT, 2002, 12th General items seized for the purpose of being used as evidence should always be Report on the CPT’s activities, properly labelled, recorded and kept in a dedicated property store. All other para 37-39. objects of the kind mentioned above should be removed from police premises. 180 Understanding Policing 7.6. Summary In this Chapter we have taken a closer look at criminal investigation, one of the core functions of the police. Criminal investigation, aimed at ﬁnding the truth, is a complicated matter requiring the professional, social, tactical and technical skills of police ofﬁcers as well as their thorough understanding of the criminal procedures involved. The presumption of innocence is at the heart of the principles protecting suspects. Police are to respect this principle as long as the suspect has not been found guilty by an independent judge. Moreover, suspects are entitled to a fair trial and the prohibition to torture is absolute and knows of no limitations. Police have many investigative methods at their disposal, the application of which is dependant upon skills, tactical considerations and legal boundaries. An important and often neglected ﬁeld concerns forensic information, i.e. all physical pieces of information for which no (suspect, witness or victim) interview is needed. However, the most neglected ﬁeld remains the preparation of the suspect interview, which should be part of the investigation itself. Too often police commence the suspect interview without having enough information to confront the suspect with, triggering police to resort to unlawful means of pressurising the suspect rather than confronting him or her with the ﬁndings of their lawful investigation. Principles and methods for investigating crime are the same irrespective of the crime: whether the suspect is an alleged thief, an abusive husband or a police ofﬁcer suspected of human rights violations. As such, the issues discussed in this Chapter can be useful for human rights advocates commenting on investigations into police misconduct as well as when commenting on police negligence in investigating crime and providing redress to victims of crime. Criminal Investigation 181 © REUTERS / Thierry Roge Part IV. Enhancing Police Professionalism Enhancing Police Professionalism: Introduction 183 Enhancing Police Professionalism: Introduction The basic premise throughout this Resource Book has been that in order to work effectively on policing issues and to seek to enhance police compliance with human rights standards, one needs to have an understanding of what policing is all about: What role do police have within the State system? How do they relate to the other security and justice institutions? What objectives do they have and how can they accomplish these? Armed with this background information and the tools to apply it to police in any target country, we believe it will be easier to design a strategy for intervention that is tailor-made to enhance police professionalism and that takes into account contextual and professional realities. Many authors, international donor programs and human rights advocates who seek to improve human rights compliance by police, stress the importance of improving or empowering a range of accountability mechanisms. There is usually a strong focus on independent oversight and complaints mechanisms. ‘Accountability’ seems to have become a buzz-word: everyone understands its importance and agrees on its potential effectiveness. However, not many truly seem to understand what accountability really is and how it can be achieved in practice. This could very well be due to the fact that the concept is so imprecise, encompassing a number of different issues and masking many varied assumptions about the police and its role within the State. Another buzz-word used in relation to the improvement of policing is ‘training’. Training is often referred to as if it is the key to success. ‘If only police knew what human rights were and how policing could be carried out in conformity with human rights principles! If only police could be trained adequately, human rights violations would cease to take place!’ Indeed, many reports by Amnesty International underline the importance of police training. This part of Understanding policing seeks to take a closer, and critical, look at these two concepts that are so key to many intervention strategies. We will explore these concepts in detail and seek to highlight their drawbacks as a means of enhancing their effects as intervention strategies in the future. The ﬁnal Chapter of this Resource Book will look at how human rights NGOs, both international (like Amnesty International) as well as local, can engage with policing issues. The Chapter builds on some of the issues discussed in Chapter 1, and tries to suggest solutions to the inherent problems that surround NGO engagement with state agencies such as the police. At the end of the Chapter a three-step approach is presented that seeks to help human rights advocates who are considering work on policing to develop an effective and realistic intervention strategy. 184 Understanding Policing © REUTERS / Thomas Mukoya Each State Party to the present Covenant undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy (…) International Covenant on Civil and Political Rights , Article 2(3) Every law enforcement agency should be (…) accountable to the community as a whole General Assembly Resolution 34/169 adopting the UN Code of Conduct for Law Enforcement Ofﬁcials,17 Dec. 1979 Effective mechanisms shall be established to ensure the internal discipline and external control as well as the supervision of law enforcement ofﬁcials. Particular provisions shall be made (…) for the receipt and processing of complaints against law enforcement ofﬁcials made by members of the public, and the existence of these provisions shall be made known to the public Guidelines for the effective implementation of the Code of Conduct for Law Enforcement Ofﬁcials Police Accountability 185 8. Police Accountability 8.1. Introduction Individual police ofﬁcers typically have wide discretion in using police powers: when and how much force to use, when to arrest, whom to search and whom not to etc. This discretion at the individual level and operational independence at institutional level are fundamental preconditions for fair and effective policing (as discussed in Chapter 4). In order to balance these powers, and prevent their abuse (for example using these powers to serve selﬁsh or partisan interests rather than the public interest), it is essential for police to be accountable to the law, the State and its citizens. A simple deﬁnition of accountability is ‘having to explain one’s actions or conduct.’1 Accountability entails “a set of normative prescriptions about who should be required to give account, to whom, when, how and about what.”2 Accountability is closely related to concepts like responsibility and liability as it means relating an act (or the omission of an act) to a person or institution. Moreover, accountability implies a requirement to remedy misconduct. Effective accountability requires the availability of effective complaints and redress procedures to members of the public who have been victimised by police abuse or negligence. A note on terminology The word ‘accountability’ comes from the world of ﬁnance; it used to be related to accounting for one’s ﬁnancial state. It has only fairly recently been adopted in the human rights context. Please note that in many languages the word cannot be translated at all, or the translation relates to this ﬁnancial aspect. In fact in many languages the word translates as responsibility, which is not entirely the same as accountability. As a result, for example in Francophone countries, people may not always understand what accountability measures seek to achieve and may be reluctant to discuss implementation of accountability measures. Be aware of this when referring to the concept and always verify what other people mean by the term. 1 ) Chambers 21st Century Dictionary, 1999. Accountability and transparency go hand in hand: “Police activity must be 2 ) Stenning, as quoted in: open to observation and regularly reported to outsiders. This requirement Bruce, D. and R. Neild, 2004, The police that we want: a applies to information about the behaviour of individual ofﬁcers as well as to handbook for oversight of the operations of the institution as a whole, especially whether the police are police in South Africa, p. 18. achieving the results expected in a cost-efﬁcient manner.”3 This transparency, 3 ) Bayley, D., 2001, given effect by reporting procedures, should go beyond the police’s institutional Democratizing the police abroad: What to do and how to boundaries. Accountability to oversight institutions, independent of ruling do it, p.14-15. regimes, which may include courts, legislatures, the media and complaint 186 Understanding Policing 4 ) Lewis, W. and E. Marks, review boards, is an important underpinning of democratic policing.4 Human 1997, Civilian police and rights oriented policing requires police, both as individuals as well as the multinational Peacekeeping - A workshop series. A role for institution, to recognize the importance of being watched and second-guessed democratic policing. by outsiders; police don’t have to like being scrutinised, but they must 5 ) Bayley, D.H., 1997, “The understand it is a precondition for legitimacy.5 contemporary practices of Policing: A Comparative view.” 6 ) See European Code of Police accountability involves: Police Ethics, Article 60. • Individual ofﬁcers at all hierarchical levels being individually accountable to their supervisors for their own conduct. Their conduct must accord with the national law and with professional codes of ethics and discipline. In the case of criminal conduct, all ofﬁcers are accountable to the courts. • Superior ofﬁcers are accountable, through reporting, supervision and disciplinary procedures, for the conduct of those under their command. • The police agency is accountable to society at large for their success in maintaining order and security and controlling crime. As an organization, the police should be accountable to independent oversight agencies set up by law and open to scrutiny by the public, including to democratically elected representatives, non-governmental organizations and the media. Accountability is usually understood in its narrow sense of police accounting for some misconduct that has already happened. This is called a posteriori accountability (subsequent accountability), in the European Code of Police Ethics. Recommendations formulated by Amnesty International in its country reports almost invariably address the failure of police to take responsibility for acts, resulting in effective impunity. However, in order to be able to assess responsibility after an act has occurred, one needs to know what the directives were prior to the act. Someone did something, but why did he or she do it that way? How could it have been prevented? Indeed, accountability also implies direction, control or diligence exercised before or during any operation to ensure that it is carried out according to the law and policies in use and with respect for human rights. This is called a priori accountability.6 Oversight refers to continuous accountability, before, during, as well as after operations have taken place. Oversight can be direct, or at a distance, can be based on samples or can (in theory) include every police action and can be independent or internal to the organization. Accountability by: The police institution and individual ofﬁcers Accountability to: The State, the law and the people served Accountability for: Actions and omissions Accountability through: Directives and preventive measures, oversight, sanctions for infringement and compensation to victims Effective accountability requires a system of multiple actors carefully keeping each other in balance. Of these actors the internal actors (i.e. those within Police Accountability 187 the police institution) tend to receive little attention from human rights advocates. Yet the internal aspect is crucial to ensuring accountability, since any external mechanism requires internal commitment to be effective. If police managers turn a blind eye to police misconduct, external measures to address misconduct will have little effect because they will face obstruction at the stage of investigation or implementation of recommendations. This is noted in a paper formulating recommendations on police reform in Mexico: “The truth of citizen oversight mechanisms is that they have not proven sufﬁcient by themselves to bring about the institutional changes needed. (…) A complaints bureau will almost certainly be necessary (…) but its recommendations would have much greater impact if the internal systems were in place to deal with them (…)”7 For an internal system to be effective it needs to be backed up by a competent judicial system and a political environment that is at least permissive but preferably supportive and have mechanisms for providing accountability to the public (including systems for receiving complaints from members of the public), independent oversight bodies and police commissions. Internal and external aspects of the accountability structure should mutually reinforce each other to ensure maximum effect. The main aim of this Chapter is to increase understanding of police accountability mechanisms in all their aspects: • both the individual ofﬁcer’s actions and omissions and the overall performance of the police agency • both a priori and a posteriori elements • both internal and external mechanisms • … and how these all relate to one another As such we will use a broad interpretation of the concept of accountability, as opposed to a more narrow interpretation that has been common amongst many human rights advocates. We start in Section 8.2 with a more thorough discussion of accountability as an intricate system of checks and balances involving many different players. Subsequently we will present an overview in Section 8.3 of what the international standards say on accountability and what they do not say. We will then focus on a variety of police accountability instruments in practice, in Section 8.4, categorised in four different areas. We will present a table in Section 8.5 for assessing police accountability, in which all the different mechanisms discussed are grouped together. Accountability is a matter of ﬁnding a proper balance between the different institutions in the ﬁeld. The table helps to assess this balance and identify gaps and weaknesses. We ﬁnish with a brief summary. 7 ) Varenik, R.O., 2003/04, Exploring roads to police reform: six recommendations, p. 12. 188 Understanding Policing Police Accountability and the Quality of Oversight Altus, a global alliance of six NGOs working across continents and from a multicultural perspective to improve public safety and justice, organised a conference on Police Accountability in October 2005. The conference stated, “Police accountability is a challenging subject even in the best of times. Increasing public concern about crime, highly visible incidents of use of force (which are often excessive) and the allocation of scarce public resources can lead politicians, the media, and others to raise the most basic questions: • For what are police accountable? • To whom are police accountable? Police ofﬁcials also have questions about oversight: • Will it be objective and fair? • Will it be managed professionally? • Will it recognize good policing as well as highlight deﬁciencies?” The conference examined a developing set of global norms and standards. Papers were presented on Brazil, Chile, India, Latvia, Mexico, Russia, UK and the USA which can be downloaded from the website www.altus.org. In 2008 Altus will publish a guide, in joint cooperation with the UN Ofﬁce of Drugs and Crime, drawing on conference (and other) material that examines examples of good practice in contemporary police accountability mechanisms around the world. The volume will be published in English, Spanish, Portuguese, Russian, and French.8 8.2. “A balanced system of multiple actors”: Four areas of accountability In Chapter 4 of this Resource Book we discussed how police relate to their political environment and the communities they serve. We’ve typed policing as a ‘political’ activity in that it needs to ﬁnd a balance between State, community, as well as professional interests. Indeed, police actions should not seek to serve selﬁsh or partisan interests but should rather seek to serve the public interest. Similarly, for accountability to be effective it should involve police being accountable to the law, the State and its citizens, indeed: “to multiple audiences through multiple mechanisms.”9 Just as it is unwise to 8 ) For further information visit: vest all powers and discretion entirely with the police, relying entirely on their www.altus.org professional judgment, it is just as unwise to vest all powers to control the 9 ) Bayley, D.H., 1997, “The contemporary practices of police with one other single body, be it the executive or the community or Policing: A Comparative view.”, anyone else for that matter. This would simply replace the locus of trust with p. 5. See also: Stone, C. and these other institutions responsible for oversight and control: how can one be H.H. Ward, 2000 “Democratic sure that the executive organs, or political institutions, parliament, community policing; a framework for action.” forums etc, are more reliable (i.e. acting in the public rather than partisan, 10 ) In relation to the private or own community interest) than the police? Indeed, accountability Ipperwash Inquiries in Canada is always a matter of balancing the power and inﬂuence of various players a paper was drafted by Kent involved.10 A system is needed where oversight and control are spread Roach on this issue in 2004, titled Four models of police- across communities and their representatives, executive agencies and legal government relationships. institutions including the law. Of course all three are interrelated: communities Police Accountability 189 are represented by politicians, who in turn are responsible for the law- making process; the major political party is usually part of the executive. Note that special attention is required to ensure accountability towards communities that are marginalised and tend to be under-represented, both in parliament as in the executive. Police accountability in Commonwealth countries The Commonwealth Human Rights Iniative (CHRI) published a report in 2005 on police accountability: Police accountability; too important to neglect, too urgent to delay. In addition to describing some of the problems of police misconduct across the Commonwealth, the report provides a comparative overview of accountability arrangements, highlights good practice, and gives recommendations for reform to assist governments, police ofﬁcials, and civil society in the development and strengthening of effective accountability regimes as part of the move towards truly democratic policing. It argues that an effective system of police accountability is based on the principle of multiple levels of accountability: to the government, to the people, and to independent oversight bodies; within a supportive legislative and policy framework. As systems of accountability involve multiple actors, some categorisation is required to analyse and assess their effectiveness. For our purposes here we will focus on four different areas of accountability: 1. Internal accountability 2. Accountability to the State, divided into three branches of the State: • The executive: This includes accountability to various government departments including the department directly responsible for policing (usually the Interior and/or Justice Ministry) • The judiciary (legal accountability) • The legislature: Democratic accountability (overlapping with accountability to the public) 3. Public accountability 4. Independent external accountability and oversight The categories vary in their distance from the police as an institution. As with any categorisation, this is to be regarded as a helpful tool rather than a stable reﬂection of reality. The different categories overlap: the demarcation between internal accountability and accountability to the executive is not always clear as in fact police are part of the executive. In some countries the police cannot be clearly delineated from the relevant Ministry, e.g. in situations where police ofﬁcers are employed by the Ministry, or when the Chief of Police is also a top Ministerial ofﬁcial. This affects how responsibilities are directed, sometimes leading to serious problems in relation to operational independence. Similarly, the legislature is responsible for making laws under which the judiciary and the police operate. Moreover, the legislature represents the people and as such this category strongly 190 Understanding Policing overlaps with that of ‘public accountability’. We suggest this categorisation be used as a model to analyse and assess the complex arena of police accountability – to which we will return in the last Section of this Chapter. 1. Internal accountability Internal accountability includes individual and chain-of-command accountability. Police ofﬁcers at all levels are individually accountable for their conduct to their superiors through the internal hierarchy. 2. Accountability to the State: • To the executive: Police leadership of the institution and the political direction that the executive branch of government may give the police are two related, yet different things. In most countries police fall under the Ministry of the Interior and/or Justice and are accountable to these ministries and their inspectorates. The national Chief of Police usually reports to the Minister of Interior, who in turn ultimately reports to parliament. In more decentralised systems the (local) Police Commissioner often also reports to the civil administration at the local level, such as a Mayor or Prefect who is the local representative of the Executive (sometimes an elected ofﬁcial), who in turn is accountable to the local council. This reporting includes performance assessments of the police institution as a whole, measuring the success of police in achieving their core objectives. • To the judiciary (also called ‘legal accountability’): Police must obey the law and accept the independence of the judiciary. They are bound to act within the law under which they operate and must use their powers in accordance with both the Police Act and other relevant legislation. Ofﬁcers who are suspected of committing crimes in the course of their duties must be brought before a court to account for their actions. They may also be sued in the civil courts. • To the legislature (also called ‘democratic’ or ‘political accountability’): Passing laws is the prime responsibility of parliaments and they may question the police’s performance in general as well as in relation to speciﬁc actions. 3. Public accountability Public accountability entails police agencies being accountable to the community they serve, either directly or through representation. Academics, NGOs and the media can promote transparency and observance of the law and standards, but police are not accountable to them. 4. Independent external accountability and oversight Independent accountability mechanisms may be divided into general (non police speciﬁc) human rights bodies, and police-speciﬁc bodies. Both of these can again be divided into those looking at overall police policy and strategy, and those that examine individual complaints. Additionally there are a variety of both ad hoc and systematic mechanisms for overseeing the police. Police Accountability 191 Accountability structures in Africa There is an interesting website on police accountability and oversight in 16 African countries that can be found at http://www.policeaccountability. co.za/Organograms/. Organizational charts are given of police agencies in these countries along with their respective accountability structures. The focus is on accountability within the Executive pillar but independent mechanisms, where these exist, are also given. 8.3. What the standards say about accountability 8.3.1. Accountability and the right to remedy Accountability as such is not mentioned in the binding international treaties. However, a basic notion underlying the international legal framework is the right to remedy when people’s rights are violated, laid out in the ICCPR and other treaties. Article 2(3) of the ICCPR states: “Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an ofﬁcial capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.” Regional jurisprudence Do note that there is a large amount of jurisprudence from both the European and Inter-American courts on the subject of ensuring individual responsibility of State agents (in most cases police ofﬁcers) for ill-treatment and unlawful killings as well as responsibility for proper planning and control of individual operations and proper legal frameworks for use of force and ﬁrearms. 8.3.2. UN Code of Conduct & the Basic Principles The UN General Assembly Resolution adopting the UN Code of Conduct for Law Enforcement Ofﬁcials (UN Code of Conduct) emphasises accountability to the community as a whole, accountability to the law, internal discipline and the need for thorough monitoring. It states:11 “… like all agencies of the criminal justice system, every law enforcement agency should be representative of and responsive and accountable to the community as a whole; 11 ) General Assembly … the effective maintenance of ethical standards among law enforcement Resolution 34/169 adopting ofﬁcials depends on the existence of a well-conceived, popularly accepted and the UN Code of Conduct for Law Enforcement Ofﬁcials,17 humane system of laws; Dec. 1979. … every law enforcement agency … should be held to the duty of disciplining 192 Understanding Policing itself in complete conformity with the principles and standards herein provided and that the actions of law enforcement ofﬁcials should be responsive to public scrutiny, whether exercised by a review board, a ministry, a procuracy, the judiciary, an ombudsman, a citizens’ committee or any combination thereof, or any other reviewing agency; … standards as such lack practical value unless their content and meaning, through education and training and thorough monitoring, become part of the creed of every law enforcement ofﬁcial …” In addition, Articles 7 and 8 of the UN Code of Conduct require police to oppose and combat corruption and to oppose and report any violation of the UN Code of Conduct internally or to “other appropriate agencies or organs vested with reviewing or remedial power”. The commentary to Article 8 refers to the need to report violations within the chain of command but, if no other remedies are available or effective, to take lawful action outside the chain of command, and, as a last resort, to the media. “Representative of and responsive and accountable to the community as a whole”12 Responsiveness and accountability are generally understood to be the two identifying elements of democratic policing around the world.13 They are also fundamental to human rights based policing. A responsive police agency is accessible and helpful to members of the public. Responsiveness requires the police to take action in response to the public’s needs, rather than to solely act on the State’s or government’s wishes.14 Responsiveness also entails being responsive to changing conditions and requirements of society and to new dimensions of crime and criminality. The Milan Plan of Action of the 7th UN Congress on the Prevention of Crime and the Treatment of Offenders, states: “The criminal justice system should be fully 12 ) Ibid. responsive to … the constantly evolving conditions of society.”15 Moreover, 13 ) Bayley, D.H., 1997, “The contemporary practices of being responsive makes the police more effective as it facilitates police access Policing: A Comparative view.” to information about crime and other relevant matters held by the public. 14 ) Ibid.: “A democratic Responsiveness will also make the public more inclined to accept police police force is organized to powers. Note that some would argue the opposite: that police should keep be responsive downward; an undemocratic police force is their distance from the communities they serve and should carry out tasks organized to be responsive objectively and impartially as neutral State representatives. upward.” p.4. 15 )The Plan urges States A police agency runs the risk of being less likely to be “responsive and to improve “criminal justice accountable to the community as a whole” if it represents only one political systems so as to enhance their responsiveness to changing or social group. A representative police agency is drawn from society and conditions and requirements should strive to represent women and men from all regions and social groups. in society and to the new In any event it should be responsive to the needs of all sectors of society and dimensions of crime and also actively account for its actions to all sectors of society. Note that in order criminality...” Adopted by the General Assembly resolution to be responsive to all sectors of society, representation is not by deﬁnition 40/32, 29 Nov. 1985, para 4-5. necessary nor is it necessarily sufﬁcient. Police ofﬁcers should be able and Police Accountability 193 willing to professionally (i.e. impartially and objectively) apply the law, which in itself should be in accordance with human rights standards. Again, some would argue that representativeness is an obsolete requirement since the State should neutrally and objectively carry out State obligations – the (ethnic, gender, religious etc.) background of the State representative being irrelevant. See also Chapters 3 and 9. The Basic Principles on the Use of Force and Firearms by Law Enforcement Ofﬁcials (Basic Principles) contain several principles for accountability in relation to the use of force and ﬁrearms: • Principle 22 calls for an “effective review process” and states that independent administrative or prosecutorial authorities should be able to exercise jurisdiction in appropriate circumstances. Cases of death and serious injury or other grave consequences must be reported promptly to the “competent authorities responsible for administrative review and judicial control.” • Principle 23 states that persons affected by the use of force and ﬁrearms, their legal representatives and dependents shall have access to an independent process including a judicial one. • Principle 24 requires that superior ofﬁcers should be held responsible “if they know, or should have known” that their subordinates “are resorting or have resorted, to the unlawful use of force and ﬁrearms, and they did not take all measures in their power to prevent, suppress or report such use.” • Principle 25 requires that ofﬁcers who refuse to carry out illegal orders to use force and ﬁrearms and who report such use do not suffer criminal or disciplinary sanction. • Principle 26 states that ofﬁcers may not claim that they were obeying superior orders if such orders are manifestly unlawful and if they had a reasonable opportunity to refuse to carry out the orders. In any case, the superiors who gave the unlawful orders should be held responsible. 8.3.3. The European Code of Police Ethics Twenty-three out of the 66 Articles that make up the European Code relate directly to the issue of accountability. Even though the Code has been developed for those countries within the jurisdiction of the Council of Europe we do recommend reading it in full. We will brieﬂy summarise here. Section II, Articles 3 - 5: Police should be established in law. Laws relating to the police should accord with international standards to which the country is a party and they should be clear and accessible to the public. The police should be subject to the same legislation as ordinary citizens. Section III, Article 8, states: “[i]t must always be possible to challenge any act, decision or omission by the police which affects individual rights before the judicial authorities.” 194 Understanding Policing Section IV, Articles 12 to 17, require that the police must be organized with a view to earning public respect; they must be under the responsibility of civilian authorities; they should normally be clearly recognizable; they should enjoy “sufﬁcient operational independence” and should be accountable for this; police personnel at all levels “shall be personally responsible and accountable for their own actions or omissions or for orders to subordinates”; there should be a clear chain of command and “it should always be possible to determine which superior is ultimately responsible for the acts or omissions of police personnel.” Articles 19 to 21 state that the police shall be ready to give objective information on their activities to the public; the agency “shall contain efﬁcient measures to ensure the integrity and proper performance of police staff, in particular to guarantee respect for individuals’ fundamental rights and freedoms”; there should be effective measures to combat corruption. Articles 33 and 34 state that disciplinary measures brought against police staff shall be subject to review by an independent body or a court and that the public authorities must support police personnel who are subject to ill-founded accusations concerning their duties. Section V, Articles 38 and 39 and 46 concern the duty of police to verify the lawfulness of their intended actions and to refrain from carrying out orders which are clearly illegal and to report such orders “without fear of sanction”. They must also report acts of corruption. Section VI deals with accountability in particular. Articles 59-63 require that the police are: accountable to the state, the citizens and their representatives; subject to efﬁcient external control; state control shall be divided between the legislative, executive and judicial powers (see box below); public authorities shall ensure effective and impartial procedures for complaints against the police; accountability mechanisms based on communication and mutual understanding between the public and the police, shall be promoted; codes of ethics, based on the principles set out in the European Code, shall be developed in member states and overseen by appropriate bodies. Finally, Article 66 requires that implementation of the Code be “carefully scrutinised by the Council of Europe.” Article 60 of the European Code of Police Ethics reads as follows: “State control of the police shall be divided between the legislative, the executive and the judicial powers.” Its Commentary states: In order to make the control of the police as efﬁcient as possible, the police should be made accountable to various independent powers of the democratic state, that is the legislative, the executive and the judicial powers. Police Accountability 195 In a simpliﬁed model, the legislative power (Parliament) exercises an a priori control by passing laws that regulate the police and their powers. Sometimes the legislative power also perform an a posteriori control through “justice and interior commissions” or through “Parliamentary men”, who may initiate investigations, ex ofﬁcio or following complaints by the public concerning mal administration. The executive power (government: central, regional or local), to which the police are accountable in all states, perform a direct control over the police as the police are part of the executive power. The police receive their means from the budget, which is decided by the government (sometimes approved by the parliament). Furthermore, the police receive directives from the government as to the general priority of their activities and the Government also establishes detailed regulations for police action. It is important to emphasise that the police should be entrusted with operational independence from the executive in the carrying out their speciﬁc tasks (see also Article 15). The judicial powers (in this context comprising the prosecution and the courts) should constantly monitor the police in their functions as a component of the criminal justice system. The judicial powers (in this context the courts), also perform an a posteriori control of the police through civil and criminal proceedings initiated by other state bodies as well as by the public. It is of the utmost importance that these powers of the state are all involved in the control of the police in a balanced way. 8.3.4. What the standards do not say The international standards focus on a posteriori accountability principles, in which the a priori aspect is implied but not given explicitly (the only exception is the European Code of Police Ethics). Amnesty International’s recommendations too tend to focus on the a posteriori aspect of accountability. This approach is too narrow. A more holistic approach would be to explicitly include the a priori preventive aspects of accountability. The standards do not specify any particular method or structure for ensuring accountability. It is up to each jurisdiction to develop regulations and operational procedures for carrying out police functions in a way that respects and protects human rights. 8.4. Four areas of police accountability In Section 8.2. above, we stressed the importance of spreading accountability functions between more than one player in order to prevent any one party ultimately gaining control over the police and their actions. A system is required in which various players and stakeholders are kept in balance. In this Section we will discuss the various instruments and mechanisms available. 8.4.1. Internal accountability Internal lines of accountability, including the internal police hierarchy, are of utmost importance in seeking to achieve respect for human rights. If police go unpunished for human rights abuses and their superiors don’t care, why 196 Understanding Policing should they? Internal accountability starts with good leadership: managers should monitor their teams and individual ofﬁcers and carry out evaluations on a continuous basis. Police managers should know what their people are doing and express clear opinions on how police should operate (beforehand), and how an operation has been carried out (afterwards). Moreover they should cooperate with (external) oversight mechanisms. Internal oversight primarily involves the chain of command responsibility – the continuous oversight process – which has both an a priori as well as an a posteriori element to it. To deal with police misconduct there are disciplinary (and/or criminal) procedures, complaints procedures (to process complaints from members of the public) and of course reporting procedures. We will discuss some of these elements in more detail. 8.4.1.a. Chain of command responsibility Everyday discipline within the police relies on the chain of command. The chain of command refers to the internal hierarchy, necessary for achieving discipline and control. In all police agencies there is a chain of command running from the Chief of Police, through Department and Unit Heads to the newest recruit in the service. As police personnel at all levels are personally responsible and accountable for their individual acts and omissions16, it should always be possible to identify who is responsible to whom and the superior responsible for the ofﬁcer’s actions must be clearly identiﬁable as well.17 A clear chain of command, as well as effective supervision, is crucial to internal accountability, i.e. maintaining discipline and control and preventing impunity. Police are expected to obey orders from their superiors and are also expected to refrain from carrying out illegal orders.18 Supervisors (any ofﬁcer who has responsibility for the supervision of others) are responsible for: • Supervision of individual ofﬁcers, for example: ensuring welfare; giving guidance and encouragement; ensuring that procedures are followed correctly; and carrying out regular performance assessments • Supervision of operations by giving appropriate instructions before an operation and evaluating it afterwards and taking any necessary follow- 16 ) CAT, Article 2 (3): “An order up action from a superior (...) may not • Reporting on their own work and that of their subordinates - including be invoked as a justiﬁcation on the correct use of discretionary powers - to their own superiors up of torture”. Though not stated explicitly, personal liability is the chain of command an implication of Principles 10- 11, and 24-26 of the Basic The importance of management and leadership cannot be stressed enough. Principles; Article 5 of the UN Their impact on police culture and the establishment of an ethos that respects Code of Conduct. 17 ) Basic Principles, human rights, as well the establishment of open communication, standard- Principle 24. setting and monitoring, is crucial.19 Good chain-of-command management 18 ) Article 39 of the European and supervision ensures job satisfaction, early identiﬁcation of problems and Code of Police Ethics. improved effectiveness. They are key to the effective functioning of internal 19 ) European Code of Police Ethics, commentary to controls. Professional policing often goes together with extensive attention to Article 20. leadership issues, thus recognising their role in upholding human rights values. Police Accountability 197 Reform of any kind is doomed to fail if there is no true commitment from police leadership from the top down that is clearly visible.20 For this reason, the appointment process is crucial too: appointments must be credible and generate conﬁdence in the disciplinary system.21 For the internal chain of command to be effective in upholding ethics and discipline, it must also have the inherent mandate to act upon misconduct when appropriate. Placing the mandate to decide on sanctions for misconduct outside the scope of police leadership – as is suggested in some recommendations as well as in some proposals for oversight instruments – removes the responsibility from police leadership, leaving them vulnerable to charges of impotence and providing them with an opportunity to avoid taking responsibility. On the other hand, granting this mandate to police leadership requires them to be truly committed to correcting misconduct and initiating sanctions to address it; otherwise it may indeed lead to police covering up their own misbehaviour. Police managers should receive information on complaints against police they are responsible for and the outcomes of investigations into these complaints. Disciplinary records should be taken into account when deciding on promotion or transfer.22 8.4.1.b. Reporting procedures Police work, by deﬁnition, requires a fair amount of discretion for individual ofﬁcers since most of the work is carried out without being observed by superiors and without the ability to ask superiors for orders. Hence, adequate reporting procedures are essential for ensuring accountability through supervision and chain-of-command control. The international standards rarely refer speciﬁcally to reporting procedures. 23 However, compliance with many of the provisions in international standards can only be ensured if reporting procedures are in place. Most police agencies require ofﬁcers to ﬁll in reports after carrying out actions 20 ) Bayley, D., 2001, such as arrest and detention, searches or use of force and ﬁrearms. It is also Democratizing the police common in professional policing to keep a daily record (‘journal’) of actions abroad: What to do and how undertaken by police that didn’t require the use of police powers (for example to do it. 21 ) WOLA, Themes and discussions with members of the community on how to tackle a certain debates in public security problem). It is not always possible for superiors to ensure that these reports reform. A manual for public are accurate, but detailed report forms serve to ‘walk’ the ofﬁcer through the society - Internal Controls and procedures and constitute a record to hold the ofﬁcer accountable for his or Disciplinary Units and External Controls. her decisions. 22 ) Ibid. 23 ) Exceptions include the 8.4.1.c. Mechanisms for receiving and dealing with complaints from Commentary c) to Article 3 members of the public of the UN Code of Conduct and Basic Principles 6 and There should be a clear and well-publicised independent system to receive 11(f) requiring that a report be complaints from the public about the behaviour of police ofﬁcers. In Section made every time a ﬁrearm is 8.4.4. below, we will discuss such independent complaints mechanisms in discharged; and the Body of further detail. However, we note here that the fact that the public should also Principles require that details of interrogations be recorded be able to ﬁle complaints directly at police stations is sometimes overlooked. (Principle 23). 198 Understanding Policing Processes for receiving complaints should be clear and non-discriminatory and should not prevent complainants from ﬁling complaints in any way, including:24 • It should be possible to ﬁle complaints both in person and over the phone • It should be possible to ﬁle complaints at any police station (i.e. not just at head quarters) • The concerned police ofﬁcer should be required to accept all complaints (i.e. it should not be left to his or her discretion whether or not to accept the complaint) • The complainant’s security must be guaranteed; a complainant must not be threatened or intimidated not to ﬁle a complaint Moreover, there should be mandatory record keeping and tracking systems for all complaints to prevent police ofﬁcers from dismissing or covering up complaints. ‘Early Warning Systems’ In some countries police have established so-called Early Warning Systems (EWS), or Early Intervention Systems, where records are kept of complaints against police ofﬁcers (both number and type of complaints) in order to identify at-risk personnel who are the subject of numerous complaints. In some police departments in the USA for example these EWS generate automatic reports to the police chief when more than a set number of complaints are received. Even if complaints are groundless, the accumulation of a large number of complaints against a particular ofﬁcer does tend to indicate there is a problem with his or her individual style of policing. Records typically also include the times a particular ofﬁcer encounters violent resistance during arrest, the number of injuries in police-public contacts and the number of times an ofﬁcer has used his or her ﬁrearm.25 A complaint can be the start of a disciplinary or criminal procedure. Note that not all complaints require a thorough investigation. In fact, sometimes a simple apology by the respective police ofﬁcer sufﬁces. Filing complaints directly with the police obviously depends on public conﬁdence in the police. Police agencies that are under-resourced, face high 24 ) WOLA, Themes and levels of crime and lack adequate leadership or training are usually reluctant to debates in public security introduce effective complaints systems. It is therefore important to underline reform. A manual for public the beneﬁts of these systems: complaints allow the police to improve their society - Internal Controls and standards and the mere fact that people complain shows they trust the system. Disciplinary Units. 25 ) Ibid. See also After all, if people don’t trust the police they are not likely to have faith in the www.policeaccountability.org, complaints system and wouldn’t bother to ﬁle a complaint as a consequence. a website containing best Indeed, the ﬁrst result of implementing an effective complaints mechanism is practices type information and often an increase in the number of complaints, rather than a decline. resources on Civilian Review Boards, Citizen Oversight of Police, Racial Proﬁling etc. within the USA. Police Accountability 199 Complaint or strategy? Complaints are sometimes ﬁled for reasons other than seeking justice. Criminal suspects may ﬁle complaints with the aim of slowing down a criminal investigation, or blocking it altogether; people being ﬁned may ﬁle complaints as a means of avoiding payment of penalties; complaints may be ﬁled because a person feels his or her request for police intervention has not been respected (for example a person ﬁling a complaint because police have refused to help repair his or her ﬂat tyre, which obviously is not a police ofﬁcer’s job). Interestingly, sometimes the police themselves apply the same tactics, ﬁling a complaint against a particular member of the public to prevent him or her ﬁling a complaint against the ofﬁcer. Investigation of complaints can be a difﬁcult undertaking with many different interests involved. Malicious complaints make police reluctant to receive complaints and this further increases the distance between public and police. On the other hand, large numbers of malicious complaints do imply that public conﬁdence could be improved. Malicious complaints are sometimes seen in countries that have gone through transition; from authoritarian policing to more responsive policing. They may indeed reﬂect the public’s wish to test the system and seek maximum liberty at the cost of law enforcement.26 The European Code of Police Ethics recognizes that police often face malicious complaints and urges that police agencies provide support for police accused of misconduct including through the judicial system.27 8.4.1.d. Disciplinary procedures Disciplinary proceedings, being administrative law, relate to the conduct of police as employees. Just as any employer in any organization has the right, and the duty, to act upon misconduct whenever it occurs (whether based on a complaint or not) so does the police manager. Misconduct can be minor, such as coming in late, not being dressed properly, smoking where this is prohibited etc, but it can also involve major offences including human rights violations. Generally speaking, the more minor offences will be dealt with under 26 ) Uildriks, N. & P. van disciplinary procedures whereas the more serious offences (criminal offences) Reenen, 2003, Policing post- will be subject to criminal proceedings (see below). communist societies. Police- public violence, democratic policing and human rights. Disciplinary procedures should ensure adequate impartiality but in many 27 ) The European Code of police systems this is not the case. In systems which do have some regard Police Ethics, art.34: “Public for impartiality the investigative procedures are carried out by ofﬁcers authorities shall support police from a different province or area or by a specialist unit, such as an ethics personnel who are subject to ill-founded accusations and discipline department (often called Bureau of Internal Affairs) – these concerning their duties”. are usually called upon for more serious offences, with minor infractions 28 ) WOLA, Themes and (e.g. rudeness, being late) left to the discretion of the ofﬁcer’s supervisor. debates in public security Internal Affairs Units must be adequately staffed with appropriately trained reform. A manual for public society - Internal controls and investigators. The investigations should be carried out by an ofﬁcer with equal disciplinary units. or a superior rank to the ofﬁcer under investigation.28 Some systems permit 200 Understanding Policing a superior ofﬁcer to appoint ad-hoc disciplinary panels, with or without an opportunity for the defendant to challenge the composition of the panel. When is an offence serious enough for investigation? “Distinctions between lesser and serious misconduct must be made with great care and examined to ensure that “lesser infractions” are not so broadly or vaguely deﬁned that any offence but the most serious can be dealt with outside the formal disciplinary process. For example, if a police ofﬁcer fails to investigate a case properly because of racial or political prejudice, there is a danger that this could be interpreted as poor performance instead of unlawful discrimination.”29 In most systems, police facing disciplinary sanctions above a certain level are allowed to appoint someone to act in their defence: either a fellow ofﬁcer or an independent lawyer. Police unions, where these exist, can provide defence counsel or fund professional legal advice. Systems that do not permit the accused to choose her or his defence counsel arguably violate the right to defence. The results of disciplinary procedures for infractions above a certain level are normally submitted to senior levels of management; for example the Commander in Chief may be required to make a ﬁnal decision in cases where a disciplinary panel has recommended suspension or dismissal. There should be a possibility for appeal. Though the procedures for appeal may differ from country to country, it usually involves written submissions contesting the ﬁndings of the disciplinary hearing. The European Code of Police Ethics requires that disciplinary decisions be subject to review by an independent body or a court.30 Disciplinary procedures should be both thorough and fair, in order to protect the rights of the complainant or victim and the police ofﬁcer. They should take place within a reasonable time period. It is true that there are many examples of failing disciplinary procedures where police management let human rights violations go unreported and unpunished. The opposite is true as well; disciplinary procedures are sometimes unfair towards the respective police ofﬁcer, leading to disciplinary punishments for alleged acts for which 29 ) Ibid., p.4. there is little evidence. Indeed, police ofﬁcers’ rights are violated by many 30 ) Article 33 of the European internal disciplinary systems. A lot of internal systems are institutional control Code of Police Ethics: mechanisms that senior ofﬁcers use to punish insubordinate lower ranks. In “Disciplinary measures brought some cases there are serious issues of denial of rights and punishments being against police staff shall be subject to review by an imposed prior to any ﬁnding being made (suspension with no pay during an independent body or court.” investigation that may last for months for example). Policing the police An important issue to consider is who carries out the investigations against a police ofﬁcer. In most jurisdictions the police investigate crimes against their own agents. Criminal, or disciplinary, investigation requires speciﬁc Police Accountability 201 competencies, as well as experience, typically held by police ofﬁcers. Independent investigation bodies also often draw their expertise from former police ofﬁcers. This fact doesn’t have to make the investigations less effective, nor is it automatically a recipe for partiality, vengeance or impunity, but it does necessitate adequate checks and balances (i.e. authorisation of the investigation, prosecution and trial) to guarantee impartiality and objectivity. 8.4.1.e. Criminal procedures Police ofﬁcers are subject to the national law. Whenever there is information that an infraction may amount to a criminal offence, the alleged offence should be reported immediately to the appropriate investigation and prosecution authorities. Information about a police ofﬁcer being involved in a crime may emerge • during a disciplinary procedure • during a criminal investigation into another matter • from a report by a fellow ofﬁcer or a complaint by a member of the public If there is information that a criminal offence has been committed but the criminal investigation authorities ﬁnd that there is not enough evidence to charge the suspected ofﬁcer, he or she may still be subjected to disciplinary procedures. Police accused of criminal acts should have the same rights of defence as any other citizen including the right to be presumed innocent, the right to be informed of the charges against them, to nominate defence witnesses and question prosecution witnesses, to be assisted by chosen legal counsel and to appeal against the verdict and sentence. Witness protection It may be necessary to develop an effective system of witness protection of those ﬁling complaints against police or in any other way acting as witnesses. In Brazil it is explicitly acknowledged that the police are in an ambiguous position when having to protect witnesses giving testimony against police. For this reason a witness protection program (called PROVITA) is run in every state by a local NGO (and overseen at a national level by a national NGO). They are funded jointly by state and federal funding. The scheme has been important in ensuring that police involved in human rights abuses - notably extrajudicial executions and organised crime - are brought to justice. Note that the project aims to protect the ‘evidence’ rather than the individual. Thus the relative of a victim killed by the police, who may be under threat because they are calling for justice, would not be given protection as they do not have any evidence to provide. The collaboration between state and civil society has been controversial with many NGOs. 202 Understanding Policing 8.4.1.f. Disciplinary or criminal procedures? Misconduct involving criminal offences should be dealt with under criminal law (but may also lead to disciplinary sanctions such as dismissal); all other misconduct can be dealt with under disciplinary proceedings. When disciplinary investigations reveal information about criminal offences a criminal investigation must be initiated. In some jurisdictions, e.g. in the Netherlands, disciplinary investigations can take place alongside the criminal investigation, though in others a disciplinary investigation cannot take place pending a criminal investigation: when a disciplinary investigation leads to a criminal investigation the disciplinary procedure must be ‘frozen’ till the results of the criminal investigation are available. In any event, when the offence under investigation is found to constitute a criminal act, it should be handed over to the criminal court. As indicated above, ensuring that disciplinary procedures are fair and thorough is essential. Disciplinary procedures are similar to (criminal) trial procedures but the rules of evidence are not as strict and there are lesser safeguards to protect the suspect’s rights than there are under criminal proceedings. Under criminal law, liability for the offence must be proven beyond reasonable doubt, whereas under disciplinary procedures it sufﬁces to meet the ‘balance of probabilities’: proving it probable that the offence happened and was carried out by the particular ofﬁcer is sufﬁcient to establish guilt. It is up to the ofﬁcer to prove otherwise. Moreover, a complaint that has not been proven can still be registered in the ofﬁcer’s personnel ﬁle (though sometimes only for a limited period). Also, the accused ofﬁcer has no right to remain silent – on the contrary, his or her supervisor may order a subordinate to speak and their pocket-book records are not their own private property for example. As such, the presumption of innocence can be less effective and ofﬁcers may ﬁnd themselves in a situation in which they incriminate themselves (this is also the reason why in some jurisdictions, disciplinary and criminal proceedings are not permitted to take place at the same time). On the other hand, the sanctions applicable in a disciplinary process – ranging from verbal warnings to dismissal – are not as serious as criminal sanctions (although some disciplinary systems do allow for administrative detention e.g. Angolan disciplinary regulations allow for up to 30 days’ detention). Some police agencies sometimes initiate proceedings by carrying out a so-called ‘exploratory investigation’ after hearing about police misconduct. This exploratory investigation, usually carried out with great conﬁdentiality, is meant to gather information on whether an investigation is needed at all and if so, which form is most appropriate: criminal or disciplinary. In inquisitorial legal systems the police are required to inform the prosecutor if criminal proceedings are initiated, but may carry out disciplinary proceedings themselves; in accusatorial legal systems the police can carry out both types of investigations on their own (see Chapter 2 for a discussion on the differences between the accusatorial and inquisitorial system). Usually the disciplinary procedures dictate who takes the decision to pass the information to the criminal authorities. Often this is the person in charge of the disciplinary proceedings. Police Accountability 203 The advantage of conducting an exploratory investigation is that it can guide decision-making and prevent damage to a police ofﬁcer found to be innocent. However, such damage control can obviously also be counterproductive in that it can lead to no investigation being initiated at all, resulting in effective impunity. �� 8.4.1.g. Whistle-blowing Article 8 of the UN Code of Conduct states: “Law enforcement ofﬁcials who have reason to believe that a violation of the present Code has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities or organs vested with reviewing or remedial power.” Its commentary states that the Article seeks to “preserve the balance between the need for internal discipline of the agency on which public safety is largely dependent, on the one hand, and the need for dealing with violations of basic human rights, on the other. Law enforcement ofﬁcials shall report violations within the chain of command and take other lawful action outside the chain of command only when no other remedies are available or effective. It is understood that law enforcement ofﬁcials shall not suffer administrative or other penalties because they have reported that a violation of this Code has occurred or is about to occur.” The term ‘appropriate authorities or organs vested with reviewing or remedial power’ refers to “any authority or organ existing under national law, whether internal to the law enforcement agency or independent thereof, with statutory, customary or other power to review grievances and complaints arising out of violations within the purview of this Code.” ‘Blowing the whistle’ is a very difﬁcult thing for most police ofﬁcers to do. Police culture cherishes loyalty, sometimes at the cost of integrity towards the public (the ‘blue wall of silence’).31 As misconduct tends to persist in situations of ineffective supervision and as such always involves ineffective leadership, supervisors (themselves part of police culture) often have personal interests in keeping malpractice hidden. This is especially problematic as policy usually requires the whistle-blower to ﬁrst report illegal orders or practice through 31 ) See for example Reenen, the chain of command, which is often where the problem originates, and only P. van, 1997, “Police integrity allow for whistle blowing when the internal lines of complaint have proven to and police loyalty: The Stalker dilemma.” be ineffective. 204 Understanding Policing Measures are in place to prevent State ofﬁcials from disclosing information of a conﬁdential nature. This is recognized in Article 4 of the UN Code of Conduct, which states: “Matters of a conﬁdential nature in the possession of law enforcement ofﬁcials shall be kept conﬁdential, unless the performance of duty or the needs of justice strictly require otherwise.” The commentary to this Article states: “(…) Great care should be exercised in safeguarding and using such information, which should be disclosed only in the performance of duty or to serve the needs of justice. Any disclosure of such information for other purposes is wholly improper.” The dilemma is clear: internal systems can prevent whistle-blowing, and permit the continuation of abuses, by labelling information as conﬁdential. It is for this reason that the UN Code of Conduct in its commentary allows for State ofﬁcials, “as a last resort and in accordance with the laws and customs of their own countries and with the provisions of Article 4 of the present Code, they bring violations to the attention of public opinion through the mass media.” In order to avoid the persistence of a police code of silence, and its devastating effect on transparency and accountability, good leadership, an independent internal complaints system and appropriate measures to protect “whistle- blowers” are fundamental. The UN Code of Conduct states: “Law enforcement ofﬁcials who comply with the provisions of this Code deserve the respect, the full support and the co-operation of the community and of the law enforcement agency in which they serve, as well as the law enforcement profession” which implies a requirement to protect and respect the whistle blower. Rotten apple or rotten orchard?32 What happens after internal investigations is not always clear. The ofﬁcer under investigation may be punished, ranging from a verbal warning (under disciplinary procedures) to penal detention (under criminal law). In most cases abuses are treated as isolated incidents. Once this one incident is solved, once the rotten apple is removed, the problem is believed to be tackled. This is rarely a realistic assumption. In many situations the abuse takes place because the entire system of checks and balances, indeed the entire (internal) accountability system, was not functioning properly. The absence or inadequacy of operational and/or administrative procedures, negligent supervisors and a culture fostering ‘brotherhood’ principles rather than professionalism, often contributes to or causes the abuse. Indeed, those investigating abuses often encounter a whole range of system failures that have led to the persistence of abuses. It is therefore crucial that lessons are drawn from case-based investigations which can then contribute to reforming and strenghtening the system to prevent future abuses and end bad practice. Note that “much human rights case work focuses on individual acts of abuse 32 ) Punch, M., 2003, “Rotten and seeks accountability in those cases against the oﬁcers responsible. Orchards: `Pestilence`, Police Misconduct and System Human rights analyses also document systematic abuses against political and Failure.” ethnic sectors, but often have little way in knowing which speciﬁc aspects of Police Accountability 205 police leadership, regulations, practice and culture are the most problematic contributors to abuse and therefore should be key foci in any reform effort.”33 8.4.2. Accountability to the State 8.4.2.a. Executive In most countries the national Chief of Police reports to the Minister of Home Affairs/Interior, who in turn reports to the Head of Government who in turn reports to the parliament. In decentralised systems a regional/local police commissioner is accountable to regional or local representatives of the State, such as a Mayor or Prefect, who in turn is accountable to a local council. It is not always clear who is responsible for the appointment and management of Chiefs of Police, for disciplinary procedures, for policy direction and for monitoring compliance with policies. In most countries however, such responsibilities lie within the competence of the relevant Ministry, with police responsible for implementation and reporting. As executive oversight should not interfere with operational independence it is crucial to have clear delineation of roles, responsibilities and relationships between police and ministries that are laid down in law.34 The executive usually sets policy guidelines, identifying goals and targets for the police (which usually require approval by parliament). An important function of the executive is to formulate (or authorise) codes of conduct and codes of discipline and standard operational procedures which operationalise law (the regulatory basis of accountability): • Codes of Conduct usually include human rights principles - such as the prohibition of torture - and usually contain a provision that ofﬁcers should not obey orders that are clearly illegal. Some Codes of Conduct are extremely speciﬁc while others are very general. Sometimes Codes of Conduct are classed as conﬁdential, with the result that NGOs and the media may not be aware of how the police are supposed to behave nor whether these codes conform to international human rights standards. Human rights oriented policing requires States to disclose their rules and regulations governing police behaviour. Moreover, these Codes should be legally binding; either as part of the Police Act or in separate laws. Statutory Codes of Conduct may then be invoked in a civil or criminal case. Codes of Conduct, sometimes called Codes of Ethics, may include matters not directly relevant to human rights abuses, such as police 33 ) WOLA, Themes and debates in public security dress, obedience to superiors, and rules concerning participation in reform. A manual for public political or trade union activities. These regulations are important for society - Internal controls and police themselves however, as they tend to restrict the rights of police disciplinary units. ofﬁcers. Those involved in advocacy and engagement with police 34 ) CHRI, 2005, Police accountability; too important should try to keep an eye on police ofﬁcer’s rights; it may ease tensions to neglect, too urgent to delay. and can help to establish a mutual agenda. 206 Understanding Policing • Standard Operational Procedures (SOPs), also known as ‘instructions’, ‘regulations’, ‘operational codes’, or simply ‘rules’, are used in different countries to describe procedures for carrying out police functions, particularly in relation to arrest and use of force. Standard operational procedures are usually drafted by staff of relevant Ministries but may also be developed from the bottom up and be subsequently authorised by a Ministry – once proven effective in practice. SOPs should be based on national law, international human rights standards, national Codes of Conduct/Ethics and general concepts of police practice. For example, national laws may allow property searches to be made without a search warrant if there is a danger of evidence being lost through any delay. SOPs should provide precise guidance on the conditions under which such a search may be made and the required reporting procedures. SOPs are not usually in the form of law. However, they may be taken into account by a court as evidence of how police ofﬁcers are expected to behave. • Disciplinary codes usually establish: · Norms to which ofﬁcers should comply; these tend to be rather abstract, such as behaving in a ‘decent manner’ and acting ‘diligently’; · Forms of reward for good work and behaviour and sanctions for infractions of the disciplinary code; · Procedures for reporting breaches of the disciplinary code or the law; · What ofﬁcer may order a disciplinary procedure (this is usually the manager of the person suspected of a breach of discipline); · Various panels and investigative mechanisms that are established to hear complaints; · The rights of police facing disciplinary procedures, including the right to appeal. Most countries also have a Police Inspectorate, typically within the Ministry of the Interior. For example in France, “on behalf of the Minister of the Interior, Internal Security and Local Rights and the Minister for Overseas Territories, the Inspector General of the Adminstration (IGA) exercises ‘the highest level of supervision’ over all personnel, departments, bodies or institutions reporting to both these ministries. It also conducts disciplinary investigations.”35 Another example is Her Majesty’s Inspectorate of the Constabulary in the United Kingdom. Its Statement of Purpose states: “To promote the efﬁciency and effectiveness of policing in England, Wales and Northern Ireland through inspection of police organizations and functions to ensure agreed standards are achieved and maintained; good practice is spread; and performance is improved. Also to provide advice and support to the tripartite partners (Home 35 ) The text is taken from the website, which is also Secretary, police authorities and forces) and play an important role in the in English. See http://www. development of future leaders.”36 interieur.gouv.fr/. 36 ) The text is taken from Police Inspectorates usually evaluate police performance and the effectiveness the website. See: http:// inspectorates.homeofﬁce.gov. of strategies and (internal) policies, often on an annual basis. Some don’t uk/hmic/. investigate individual cases but rather aim to identify patterns of police Police Accountability 207 activity. Those working within the inspectorates are often former police ofﬁcers themselves as it is considered that they will understand police realities better. Though this is undoubtedly true, it is strongly recommended to have both police and civilian staff within inspectorates, as a means of facilitating transparency and accountability. 8.4.2.b. Judiciary: legal accounability The legal framework of a police agency includes constitutional provisions, criminal codes and criminal procedure codes, as well as one or more statutes laying down the purpose, structure, competencies and responsibilities of the agency (usually called a Police Act). As was noted by the Commonwealth Human Rights Initiative in its 2005 report on Police Accountability, these Police Acts sometimes originate from long before 1948, when the UDHR was adopted. Reviewing whether such legislation is in accordance with current international human rights standards is recommended.37 The legal framework also includes the ethical and disciplinary codes and other statutory instruments. The statutory framework that governs police operations, including ethical and disciplinary codes, should be accessible to the public, both in terms of availability and clarity.38 Obviously a police ofﬁcer is also bound by international law. For example the prohibition on torture is absolute, and a police ofﬁcer is required to know about this. However, this absolute prohibition is meaningless in many countries if a police ofﬁcer doesn’t know there is such a thing as international law in the ﬁrst place, let alone that he or she is bound by it. Police ofﬁcers are typically not well acquainted with international law; they are guided by national law and it is the responsibility of national legislators to ensure national law conforms to international law. 37 ) CHRI, 2005, Police accountability; too important Other legislation also governs police operations. Notably so-called security to neglect, too urgent to delay. legislation (see also Chapter 2) that more often than not increases police 38 ) Article 4 of the European Code of Police Ethics states: powers and lowers the standards of human rights protection for those “Legislation guiding the suspected of ‘terrorism’.39 Security legislation should be examined in relation police shall be accessible to to its ability to facilitate impunity and establish obstacles to prosecution or the public and sufﬁciently victim compensation and civil suits for police wrongdoing.40 clear and precise, and, if need be, supported by clear regulations equally accessible Police, like other citizens, are accountable to the judicial authorities. Police to the public and clear” and must explicitly accept this judicial independence and comply with judicial 5: “Police personnel shall orders. In all jurisdictions an independent and impartial judicial system is an be subject to the same legislation as ordinary citizens essential prerequisite for ensuring fair trials but also for addressing police and exceptions may only be misconduct. In India for example, a number of signiﬁcant judgments have been justiﬁed for reasons of the passed by the higher courts that prescribe safeguards or guidelines to regulate proper performance of police police conduct during arrest, interrogation and other stages of investigation work in a democratic society.” (see Chapter 6). 39 ) AI, 2002, Rights at risk: Amnesty International’s concerns regarding The role of the judiciary is important not just when police are under security legislation and law investigation themselves, but also in directing and overseeing police enforcement measures. investigations. If independent authorisation is required to employ particular 40 ) CHRI, 2005, Police accountability; too important investigative methods, police are obliged to comply accordingly. Police should to neglect, too urgent to delay. also be transparent about how they have carried out an investigation so that 208 Understanding Policing 41 ) General Assembly their methods are open to judicial scrutiny and review. Finally, police are Resolution 34/169 adopting accountable to the prosecutor (or investigative judge) and sometimes (in the the Code of Conduct, of 17 December 1979. inquisitorial system) work under his or her authority. 42 ) WOLA, Themes and debates in public security 8.4.2.c. Legislature: Parliamentary oversight of the police reform. A manual for public Parliaments pass the legislation that deﬁnes police functions (see above). society, External controls. 43 ) See: http://www.parc. Communities, through their elected representatives, should ensure that info/reports/. the laws governing the police are “well-conceived, popularly accepted and humane”41, that standards are upheld and that the government provides adequate resources for the police. Parliamentary control in most countries would include the right of members of parliament to question members of the government, including those responsible for the police, and to obtain any necessary cooperation from public bodies that would assist them in their work. Ad hoc parliamentary committees are sometimes set up to investigate scandals or incidents relating to the police (see below). Some parliaments have human rights committees that consider issues relating to police behaviour. Countries with decentralised systems sometimes also have city councils, or provincial parliaments, with the same function. A crucial parliamentary role is to review and approve the policing budget. This provides an annual opportunity to question the police on a range of issues. Unfortunately these are often rubber-stamping exercises exacerbated by the limited information provided by police and the lack of parliamentary expertise in reviewing and questioning what certain data means. Often the police are simply questioned on the crime rate, on the assumption that they are able to control it. Policy is often understood solely in terms of providing more money and legal powers and political grandstanding takes precedence over substance. This lack of expertise by parliamentarians is sometimes counterbalanced when there are public hearings or when they are willing to receive input from NGOs and independent experts. In some countries police tend to resist parliamentary oversight: “The most common police response is to accuse parliamentary efforts to reform legislation or increase oversight of public security policies of being an unwarranted political interference.”42 Independent inquiries There are many examples of independent inquiries into police misconduct, sometimes initiated by parliament, government or local elected bodies. Examples include: • The Mollen Commission investigated allegations of police corruption and the anti-corruption procedures of the New York City police department in the USA. Its report was submitted on July 7, 1994.43 • In the Netherlands a parliamentary inquiry was initiated in 1994 into the investigative methods of police in ﬁghting organized crime. The Police Accountability 209 commission (the “van Traa Commission”) submitted its report in 1996, concluding (a.o.) that police should be bound by clear and effective legislation and that their actions should be under strict judicial supervision.44 • The “Commission Dutroux”, a parliamentary inquiry, was established in 1996 in Belgium following widespread criticism of the handling of criminal investigations into a series of kidnappings and murders. Two reports - the ﬁrst providing the facts of the case and the second seeking to explain institutional failings and formulating recommendations for reform of the police structure and its accountability mechanisms - were published in 1998.45 • Sir William Macpherson inquired into the criminal investigation (or rather lack thereof) of the murder of a black teenager in London, UK in 1993. His report, published in 1999 (known as the “Macpherson Report”), spoke of institutional racism within the criminal justice system in the UK and made numerous recommendations to address this.46 • The “Patten Commission” in Northern Ireland (ofﬁcial titled the Independent Commission on Policing for Northern Ireland) was established with a broad mandate after the 1998 Belfast Peace Agreement to look at the role of the police. The Commission’s 1999 report A new beginning, Policing in Northern Ireland is often cited in publications on police and human rights.47 8.4.3. Public accountability As noted above, while the UN Code of Conduct requires that police are accountable to the people they serve, it is not speciﬁc about how that 44 ) See: http://www. accountability is to be achieved. The resolution adopting the UN Code of burojansen.nl/traa/e.htm Conduct states: “Every law enforcement agency should (…) be held to the duty 45 ) See (also in French): of disciplining itself in complete conformity with the standards and principles http://www.dekamer.be/kvvcr/ herein provided and that the actions of law enforcement ofﬁcials should be pdf_sections/comm/dutroux/ 49K0713006.pdf responsive to public scrutiny, whether exercised by a review board, a ministry, 46 ) See: http://www.archive. a procuracy, the judiciary, an ombudsman, a citizens’ committee or any ofﬁcial-documents.co.uk/ combination thereof, or any other reviewing agency.”48 document/cm42/4262/sli- 00.htm 47 ) See: http://www.belfast. The African Commission on Human and Peoples Rights adopted a resolution org.uk/report/fullreport.pdf in 2006 urging State Parties to the African Charter to “establish independent 48 ) General Assembly civilian policing oversight mechanism where they do not exist which shall Resolution 34/169, adopting include civilian participation.” 49 the UN Code of Conduct, 17 December 1979. 49 ) ACPHR, Resolution on The European Code of Police Ethics states that the police should be “subject to police reform, accountability efﬁcient external control”.50 Public accountability, both a priori and a posteriori, and civilian police oversight entails police agencies to be accountable to the community they serve, in Africa, adopted at its 40th either directly or through representation. NGOs and the media can promote Ordinary Session held in Banjul, The Gambia, from 15 - 29 transparency and observance of the law and standards, but police are not November 2006. accountable to them. 50 ) Article 59, European Code of Police Ethics. 210 Understanding Policing 8.4.3.a. Community responsiveness Enhancing some form of public accountability of the police is often linked to community policing, as discussed extensively in Chapter 3 of this Resource Book. Community policing is a policing philosophy that seeks to increase the police’s sensitivity to the needs of the public and often results from a recognition that police lack public consent. It entails a form of policing that goes beyond reactive policing and involves working with the community to solve public security problems. It seeks to increase public access to the police as well as encourage more responsive policing. This, it is argued, will increase public conﬁdence in the police and encourage members of the public to cooperate with the police. When these systems work well they contribute to police efﬁciency and also to police accountability. Communities, directly or through representation, should be able to oversee policing in some form. Such public oversight is an important accountability tool. Police are directly accountable to the people they serve. People approach the police with issues of concern, complain to police ofﬁcers about what they perceive to be miscarriages of justice, and provide feedback on overall, and speciﬁc, police performance. Obviously, these random public-police contacts take place only when the public has trust in the police agency as a whole, and regards the maintenance of security as a joint effort for which everyone bears responsibility. This kind of accountability is sometimes referred to as ‘informal accountability’, a concept we recommend avoiding as it may imply it is of lesser importance or value than the ‘formal’ types. It should be clear that direct public-police contacts are crucial for a well-functioning police agency and are a prime parameter for measuring public conﬁdence. Enhancing public accountability: the Police Station Visitors Week In November 2006 Altus, a global alliance of six NGOs working across continents, organized the ﬁrst Police Station Visitors Week. Members of the public visited their local police station to assess the quality of the services available. In total over 1500 people visited more than 450 police stations in 23 countries worldwide (including Belgium, Benin, Brazil, Canada, Chile, Germany, Ghana, Hungary, India, Latvia, Liberia, Malaysia, Mexico, the Netherlands, Niger, Nigeria, Peru, Russia, South Africa, South Korea, Sri Lanka, United Kingdom and the United States): • Giving members of the public opportunity to observe their police stations and become better acquainted with the police • Giving the police the opportunity to beneﬁt from the visits as to further improve their service • And giving the police the opportunity to gain insight in ‘good practices’ and how their station compares with others in the region and around the world For this Police Station Visitors Week small teams of visitors (3-8 people), with one team leader, were put together, carrying out brief, planned visits (around Police Accountability 211 1 hour). After the visit each team was asked to share impressions and ﬁll out a form, which was subsequently uploaded and processed via the internet through a specially designed website. The form contained of 20 universal questions to facilitate the evaluation process, categorized on 5 themes; community orientation; physical conditions; equal treatment of the public without bias based on age, gender, ethnicity, nationality, minority status of sexual orientation; transparency & accountability; and detention conditions. In 2007 Altus organized the Police Station Visitors Week again, this time with some 3,500 visitors visiting over 800 police stations. For further information visit: www.altus.org. 8.4.3.b. The media, NGOs and academics In some countries one of the most vigilant police watchdogs is the media.51 Especially in countries where the media enjoy a wide measure of freedom, it can have enormous reach and power. Any violation of human rights, occurring anywhere in the country, can be known to the rest of the country in no time, if the media takes up the story. Moreover, some media, especially modern electronic media, sometimes use sting operations, catching police ofﬁcers accepting bribes or indulging in other misconduct. However, the reverse happens too: the media’s coverage is sometimes inadequate and selective and guided by motives of proﬁt. In addition, bias and a lack of sensitive appreciation of the issues involved have affected the quality of media coverage, the selection of subjects and contents. The effect of the media can be twofold. The media can make an important contribution to accountability, but this requires a free, professional media with journalists who are well informed about police ethics and functions. Only then are media reports on human rights violations by police an important source of information for internal or independent complaints authorities as well as for NGOs. The UN Code of Conduct considers that the media may be regarded as performing complaint review functions (see also Section 8.4.1.g.). NGOs addressing human rights violations by police can also make an important contribution to accountability. In Chapter 10 we will explicitly discuss opportunities for human rights NGOs to inﬂuence police conduct. However, the relationship between police, the media and human rights groups is a complicated one (see Chapters 1 and 10). In situations of rising crime levels for example, which are often heavily reported by the (local) media, the public tends to take the side of politicians and the media who advocate tough-on- crime policies, some of which lower human rights standards. The resulting polarisation between human rights on the one hand and security on the other may complicate demands for human rights oriented policing.52 It should be stressed once more that responsive policing, enhanced through public 51 ) Based on personal accountability mechanisms, does not mean the police simply does whatever communication with Mr. G.P the public wants them to do. Joshi, CHRI, Police Program Coordinator, India. 52 ) Cavallaro, J.L., 2003, Crime, public order and human rights. 212 Understanding Policing In some countries, such as the USA and UK, a lot of research is carried out by academics into policing practices as well as public conﬁdence in the methods and philosophies used. The provision of access to information on policing to academics who are carrying out research into policing is itself an important measure of the police’s transparency. Police sometimes invest heavily in establishing public relations ofﬁces. Police public relations ofﬁces can contribute to accountability. In addition to responding to media enquiries, some provide regular reports on crime trends as well as advice about crime prevention. Some police agencies have a more transparent attitude to their internal disciplinary procedures and are willing to disclose information about internal investigations and their results. This demonstrates their commitment to opposing unethical behaviour. Moreover, human rights groups or the media can challenge police claims. Unfortunately the opposite behaviour is also seen: public relations ofﬁces that are primarily concerned with avoiding disclosure of any kind and keeping the public, including NGOs, away. 8.4.4. Independent external accountability mechanisms In Section 8.4.1.c. we referred to the fact that members of the public should be able to ﬁle complaints directly with the police. In addition to this there should be independent mechanisms established where the public can ﬁle complaints and which investigate and monitor police actions. Such independent mechanisms are obviously necessary when there is a lack of public conﬁdence in the police, but even when such conﬁdence is present, independent mechanisms are essential to ensuring scrutiny of the police (and the broader executive powers). The principles for ﬁling complaints directly with the police as discussed in Section 8.4.1.c. equally apply to independent complaints bodies. Independent accountability mechanisms may be divided into those that look at the broad picture, including overall police policy and strategy, and those that examine individual complaints. Independent mechanisms include statutory bodies such as a national human rights commission. These usually look into misconduct by any State ofﬁcial, police just being one of them but may also be police speciﬁc, i.e. only receive complaints about the police. Independent mechanisms seek to serve as a voice for the public, ensuring police responsiveness and taking on responsibility for their activities. All these bodies, though funded by the executive and authorised by law, are to establish a position that is independent and impartial. The bodies need adequate powers to investigate complaints and to ensure that appropriate remedial action is taken. They also require sufﬁcient resources and staff of a high reputation, both in skills and expertise. 8.4.4.a. National Human Rights Institutions (NHRIs) National human rights institutions, including institutions such as ombudspersons for the defense of human rights, can be distinguished from non-governmental human rights organizations by their very establishment as Police Accountability 213 a quasi-governmental agency occupying a unique place between the judicial and executive functions of the state, and where these exist, the elected representatives of the people. The aim of their establishment is to promote and protect human rights, through effective investigation of broad human rights concerns and individuals’ complaints about human rights violations they have suffered, and through making recommendations accordingly. However, the establishment of a NHRIs should not be seen as an end in itself - NHRIs should be judged on their results in effecting improvement in the human rights situation in the country, and in ensuring investigations and remedies in individual cases. The so-called ‘Paris Principles’ lay down the principles that guide the status and functioning of NHRIs, stating that their mandate should be “as broad as possible.”53 These NHRIs typically deal with misconduct of all State ofﬁcials and as such are much broader than just the police. According to the Paris Principles, the responsibilities of an NHRI should include submitting, upon request or own initiative, opinions, recommendations, proposals and reports on any matters concerning the protection and promotion of human rights; relating to any legislative or administrative provisions, as well as provisions relating to judicial organization, intended to preserve and extend the protection of human rights; any situation of violation of human rights which it decides to take up; the preparation of reports on the national situation with regard to human rights in general, and on more speciﬁc matters; drawing the attention of the government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the government. The composition of the NHRI should reﬂect the plural society and guarantee independence. They should freely consider any questions falling within their competence, hear any person, obtain any information necessary to make an assessment and publish their opinions and recommendations. A national human rights institution may be authorized to hear and consider complaints and petitions concerning individual situations. Cases may be brought before it by individuals, their representatives, third parties, non- governmental organizations, associations of trade unions or any other representative organizations. NHRIs may seek to settle the conﬂict through conciliation or may refer and/or advise the complainant about the next steps to take. Moreover, they may make recommendations to the competent authorities, especially by proposing amendments or reforms of the laws, regulations or administrative practices, especially if they have created the difﬁculties encountered by the persons ﬁling the petitions in order to assert their rights. As an illustrative example, the El Salvadorian Human Rights Ombudsman Ofﬁce has ﬁeld ofﬁces throughout the country where people can ﬁle complaints. 53 ) Adopted by the General Assembly Resolution 48/134, They can determine the accessibility of the complaint, conduct investigations 20 December 1993. and issue ﬁndings. They have the right to have access to all necessary 214 Understanding Policing documentation from the authorities accused and if they refuse to provide the requested information, their refusal permits the Ombudsman to presume that the allegations are true. For each case the Ombudsman may formulate recommendations as to how to prevent the abuse happening again.54 National human rights institutions forum This is an international forum for researchers and practitioners in the ﬁeld of national human rights institutions. At their website, http://www.nhri.net, you will ﬁnd: • Key global and regional documents • Documentation on the work of global and regional fora • Information on and from national human rights institutions • Bibliography and research materials • Capacity building and training resources In 2001 Amnesty International published recommendations on national human rights institutions, based on the Paris Principles.55 We recommend that readers of this Resource Book refer to this report. Amnesty International’s recommendations on National Human Rights Institutions (NHRIs)56 NHRIs frequently have a broad remit and scarce resources. It is therefore important to assess priorities through consultation with those affected, and work on priorities strategically, ensuring that those goals are met before ending work on the issue. Priorities should include those grave human rights violations under international law, such as extrajudicial and other unlawful killings, torture, ‘’disappearance’’, war crimes and crimes against humanity. However, NHRIs should also be empowered to take action on violations of other rights particularly social, cultural and economic rights. As such, NHRIs are to take international law, rather than national law, as reference for their work. Investigations should focus both on individual cases and on wider patterns, aiming to discover root causes and persistent problems. Findings should be 54 ) WOLA, Themes and open to public scrutiny. In carrying out investigations NHRIs should pursue all debates in public security available sources of information. These may include statements from victims, reform. A manual for public society, External controls. witnesses and alleged perpetrators; medical reports; police investigation ﬁles; This issue of the Themes and court ﬁles; media reports; information from NGOs, families of victims and debates evaluates review lawyers. This is particularly important as investigations that, for example, simply mechanisms in use in El constitute an examination of an existing police investigations ﬁle, may lead to Salvador, Brazil and Colombia. 55 ) AI, 2001, Amnesty a repetition of failures in investigation and in such cases, this may promote or International’s contribute to impunity. NHRIs should have access and be allowed to make use recommendations on national of additional (forensic) expertise. NHRIs should have full and effective access human rights institutions. to mechanisms to ensure that witnesses, complainants, or others providing 56 ) This text is based on AI, evidence to the NHRI are given appropriate protection. Investigations may be 2001, AI’s recommendations on NHRIs. initiated at own initiative or upon complaints from members of the public. The Police Accountability 215 fact that a complainant has been charged and a criminal prosecution is under way should not be a pretext for stopping NHRIs from acting on a complaint, or taking any other action within their mandate to address human rights concerns. A clear line should be drawn between appropriate roles for the NHRI and the judiciary. The NHRI should be able to investigate, but should not have judicial powers. The result of the NHRI’s investigations should be referred to appropriate judicial bodies without delay so that they can take appropriate action. Where the NHRI ﬁnds evidence that the police have made an inconclusive or otherwise unsatisfactory investigation (failed to protect human rights), or that certain individuals may have been responsible for committing human rights violations or for ordering, encouraging or permitting them (failed to respect human rights), the facts of the case should be investigated promptly, effectively, thoroughly and impartially by authorities empowered to bring criminal prosecutions, and if appropriate, those responsible should be brought to justice in legal proceedings which respect internationally-recognized rights to a fair trial. NHRIs should have powers to recommend that superior ofﬁcers are brought to justice for acts committed under their authority and should be mandated to closely follow subsequent legal proceedings in the case, by monitoring trials, or if necessary appearing before the court to make legal submissions to press for appropriate legal action to be taken within a reasonable time. If the NHRI, in the course of its work, is able to identify short- comings in the law whereby it is not possible to hold such ofﬁcers accountable, the NHRI should make recommendations for legal reform that would ensure that domestic law does not facilitate impunity. Although it is important to maintain independence of function between the judiciary and the NHRI, the NHRI should monitor whether its recommendations are followed up. NHRIs should not stand by in silence where recommendations to investigate and bring prosecutions are ignored. In such cases, the NHRI should continue to request that the authorities take up the case, if necessary through domestic and international publicity, or where possible, to bring judicial review action challenging the decision of the prosecuting authorities. NHRIs should not be complicit with impunity. The government should undertake an obligation to respond, within a reasonable time, to the case- speciﬁc as well as the more general ﬁndings, conclusions and recommendations made by the NHRI. The government’s response should be made public. 8.4.4.b. Police speciﬁc oversight bodies The Guidelines for the effective implementation of the UN Code of Conduct for Law Enforcement Ofﬁcials have a heading ‘Complaints by members of the public’, stating: “Particular provisions shall be made, within the mechanisms 57 ) Resolution 1989/61 mentioned under [internal discipline and external control mechanisms], for adopted by the Economic and the receipt and processing of complaints against law enforcement ofﬁcials Social Council, 24 May 1989 made by members of the public, and the existence of these provisions and endorsed by the General Assembly in its Resolution shall be made known to the public.”57 Indeed, many countries have speciﬁc 44/162 of 16 December 1989. independent police complaints bodies that operate alongside a NHRI as well 216 Understanding Policing as the possibility of ﬁling complaints directly with the police. Systems in use in different countries include telephone lines that may be used at little or no cost and letter boxes at police stations. Some systems have ofﬁces where people can go to register their complaints in person. In any event, the complainant should not have to make the complaint at the police station where the alleged offender is stationed; there should always be a possibility of ﬁling the complaint somewhere else. Nor should there be any fee attached to making a complaint. In Sudan for example, a complaint has to be submitted through a lawyer and there are fees for registering a complaint. In general the principles as discussed under the previous Section equally apply to speciﬁc police complaints bodies. For any system to be effective it is important that: • The procedures of the complaints ofﬁce are widely publicised; • The complaints procedures are easily accessible; • The complainant does not feel threatened; • The complainant is informed of what to expect and how to keep track of the complaint (this can include the complainant being given a reference number and the name of the ofﬁcer dealing with the complaint); • The complainant has access to witness protection if required; • The system includes opportunities to settle disputes between police and members of the public in an informal way (often a dispute can be settled by a simple apology); • Members of the public trust the system. Trust can be encouraged through the publication of reports giving statistics and information about action taken against police ofﬁcers who violate human rights (while protecting the identity of victims). Another method is to provide a measure of independent oversight, for example by giving one or more respected public individuals access to the ﬁles and powers to question any aspect of the way the complaint is handled and to bring problems to the attention of the Chief of Police. Two often cited examples: the UK and South Africa Independent complaints mechanisms as established in the UK and in South Africa are often referred to in reports on police accountability. The following information is taken from their own respective websites. The Independent Police Complaints Commission (IPCC) of the UK, established in 2004, is a Non-Departmental Public Body, funded by the Home Ofﬁce, but by law entirely independent of the police, interest groups and political parties and whose decisions on cases are free from government involvement.58 The IPCC oversees the whole of the police complaints system. It can choose to manage or supervise the police investigation into a case and independently investigate 58 ) For more information see the most serious cases. A member of the public can make a complaint if he or www.ipcc.gov.uk. she: Police Accountability 217 • Has been the victim of the misconduct by a person serving with the police. Misconduct could include a police ofﬁcer or member of police staff being rude or using excessive force. It could also include unlawful arrest or an abuse of someone’s rights. • Was present when the alleged misconduct took place, or close enough to see or hear the misconduct, and as a result suffered loss, damage, distress or inconvenience, or was put in danger or at risk. • Is a friend or relative of the victim of the alleged misconduct, distressed by the effects of the incident on the victim. • Has witnessed the alleged misconduct. • Is acting on behalf of any of the above. As the IPCC has only recently been established it is too early to comment on its effectiveness. The South African Independent Complaints Directorate (ICD) is a government department that was established in April 1997 to investigate complaints of brutality, criminality and misconduct against members of the South African Police Service (SAPS), and the Municipal Police Service.59 It operates independently from the SAPS in the effective and efﬁcient investigation of alleged misconduct and criminality by SAPS members. Its mission is to promote proper police conduct. The ICD investigates the following: • Deaths of persons in police custody or as a result of police action (such as shooting, assault). • The involvement of SAPS members in criminal activities such as assault, theft, corruption, robbery, rape and any other criminal offences. • Police conduct or behaviour that is prohibited in terms of the SAPS Standing Orders or Police Regulations, such as neglect of duties or failure to comply with the police Code of Conduct. • Dissatisfaction/ complaints about poor service given by the police • Failure to assist or protect victims of domestic violence as required by the Domestic Violence Act. • Misconduct or offences committed by members of the Municipal Police Services. Amnesty International has formulated comments regarding the ICD. Though there are certainly positive elements, important weaknesses have undermined its effectiveness and independence. These weaknesses have to do with the position of the ICD under the Ministry of Safety and Security rather than reporting directly to parliament; its limited resources; and the police not being obliged to report torture cases to the ICD.60 In 2006 there has been an independent review into the ICD. The report states that the ICD has been 59 ) For more information see www.icd.gov.za. struggling with budget constraints and management problems, and has failed 60 ) AI, 2002, Policing to to meet the demands of its caseload. It suggests the need for prioritisation. protect human rights: A survey Moreover, lack of cooperation from the SAPS is identiﬁed. As the report states of police practices in countries in its summary: “Co-operation by the police with ICD investigations and issues of the Southern African Development Community, of compliance by the police with ICD recommendations regarding disciplinary 1997-2002, p. 60-61. action or remedial measures is problematic. The situation is compounded by 218 Understanding Policing the lack of sanctions for non-compliance by the police and the weakness of existing measures of recourse available to the ICD in the even of lack of co- operation.”61 Note that some countries have independent police oversight bodies that are not involved in handling complaints. An example is Northern Ireland, where – following the Patten Commission – it was decided to establish the Northern Ireland Policing Board. This Board does not look into complaints; for this there is a separate Police Ombudsman for Northern Ireland. However, the Policing Board does have a wide mandate covering general oversight. Indeed some argue that the Northern Irish police is the most closely observed police service in the world today. As stated on their website, the Policing Board exists “to make sure the police in Northern Ireland are effective and efﬁcient.” They can hold the Chief Constable to account for his actions and those of his staff, set objectives and targets for police performance (in consultation with the Chief Constable) and monitor progress against these, as well as monitoring trends and patterns in crimes committed in Northern Ireland and making arrangements to facilitate public cooperation in crime prevention. They monitor whether systems – including internal disciplinary procedures - function appropriately, and monitor operational compliance with the Human Rights Act and the Code of Ethics. They also appoint Independent Custody Visitors and manage the Independent Custody Visiting Scheme. In addition they have a range of powers in the ﬁeld of recruitment, selection and training. 62 Creating an International Network for the Independent Oversight of Policing (INIOP) INIOP is a new international network being setup for organizations involved in the independent oversight of policing. As is stated in the leaﬂet introducing the network: “The independent oversight of the policing is a highly specialised activity. Where bodies have been set up to carry it out there are few if any similar organisations within their own jurisdiction with which they can discuss 61 ) Mistry, D. and M. Lue- Dugmore, 2006, An overview the challenges they face. In order to remain independent these bodies must of the independent complaints maintain an arms length relationship with government, the agencies they directorate (ICD) in the light of oversee, and other interested groups and individuals affected by their work. proposals to restructure the Because their work can be controversial they may also face political pressures directorate, p.5. 62 ) For more information which threaten to compromise their independence.”63 on the Northern Ireland Policing Board please visit Bearing this in mind INIOP’s aims are twofold: www. nipolicingboard.org. • To champion the principle of effective, independent oversight of uk. For more information on policing the Police Ombudsman for Northern Ireland please visit • To create opportunities for existing oversight organisations to share www.policeombudsman.org. knowledge and learning 63 ) “Together we can make it work”, Version 2, November Work on developing draft membership criteria and a constitution for the 2006. Download from INIOP’s website: “Introduction to the network continues. The ofﬁcial launch of the network is planned for late 2008. development of the network”. For more information visit www.iniop.org. Police Accountability 219 8.4.4.c. Other forms of independent oversight Some police agencies are inspected by independent auditors who monitor aspects of policing with the objective of improving policy and general performance (not individual performance). Auditors interview representatives of target groups such as detainees, street children and police ofﬁcers, all of whom give information on the basis of strict conﬁdentiality. Other systems of public accountability include “lay cell visitors schemes” through which a group of civilians or an NGO has access without prior warning to police cells to ensure that detainees are properly treated. Usually these schemes are composed of ordinary civilians having expertise in particular issues such as medics, construction and social care. Obviously for them to be effective there has to be an obligation on the receiving police ofﬁcer to grant immediate access – something that is not always easily obtained. Chapter 6 discusses oversight in relation to detention more in-depth. 8.5. Police accountability: an integral picture In this Chapter we have aimed to give an overview of the various mechanisms involved in police accountability. We have argued that for accountability to be effective, a system is needed involving multiple actors keeping each other in check. We have chosen a categorisation in order to make this complex topic accessible and comprehensible. This categorisation is partly arbitrary – there are other ways to visualise the variety of players involved – but it follows a categorisation with which many human rights advocates will hopefully be familiar. In the table presented on page 222 and 223 we have summarised the various aspects of police accountability as discussed in the previous Sections of this Chapter. The four columns follow the four areas of accountability as discussed in Section 8.4.: 1. Internal accountability 2. Accountability to the State (executive, legal and legislative) 3. Accountability to the public 4. Independent external oversight Within each column we have put the institutions working in the four respective domains in bold. These institutions include: Ad. 1. The police agency itself Ad. 2. The ministries responsible for policing; the law and the judiciary, but also prosecution; legislative bodies, such as the parliament and city councils Ad. 3. Members of the public; the media; NGOs and academics Ad. 4. Independent external accountability bodies, such as NHRIs. 220 Understanding Policing Under these institutions we have listed the separate organs within it, underlined. Under these institutions and organs we have, in italics, divided the a priori and a posteriori elements of their responsibilities in relation to police operations. Where relevant we have also formulated what institutions do while operations are ongoing (‘ongoing’) such as for example supervising police actions. Example: Under Accountability to the State, we have put accountability to the Executive. Hereunder we have put, in bold, the Ministry of Interior, under which we have placed the Police Policy Making Directorate and the Inspectorate. In italics we have described their activities; what is it these institutions do and how it relates to accountability. So, within the Executive we have the Ministry of Interior setting strategic objectives for the police and deciding on resource allocation. Both these activities take place before police operations occur and are therefore a priori activities. The Ministry also has a continuous oversight function (monitoring) taking place during operations and its Inspectorate can inspect policies and administration. Finally, the Ministry can assess, take corrective action, make budgetary changes, change regulations and propose legislative changes following police operations (a posteriori). We have similarly described all institutions playing a role in police accountability. For a proper understanding of policing, both as a function and as an activity of individual ofﬁcers, it should be realised this takes place within this large and intricate framework involving many different players and many different interests. In other words, police conduct, or police outcome, can seldomly be assessed in isolation – a full analysis of all these other institutions and how they carry out their tasks is essential for being able to adequately identify who is (co-)responsible and where corrective measures may have maximum effect. In sum: The table helps human rights advocates identify what the framework is in which police operate, whether it indeed is “a balanced system of multiple actors”, and whether these are engaged in a priori, ongoing and/or a posteriori functions of oversight. It should help identify where the weaknesses are if the system is not properly balanced (i.e. who has most power over the police). After having ‘ﬁlled out’ the table for the target country (i.e. checked whether the institutions as described are in place – for example: is there a NHRI?) it can be used to make a qualitative assessment of how these institutions and players are functioning. For this qualitative assessment the information presented in this Chapter provides the relevant background information. 8.6. Summary Police misconduct, from minor offences to gross human rights violations, should never go unpunished. Police accountability can only ever be Police Accountability 221 effective if there is clear political will and government commitment. Establishing effective accountability mechanisms is crucial. However, for such mechanisms to be effective, and in order to prevent the locus of power simply being replaced to another institution, a structure is needed that encompasses a range of accountability mechanisms and that reﬂects a number of values: public responsiveness; compliance with policies, regulations and laws; respect for the judiciary; transparency with regard to media, academics and NGOs; and an open and cooperative attitude towards independent oversight bodies. What’s more, all this needs to be supported, in theory and in practice, by police management. Effective lines of command, and leadership that are dedicated to establishing an ethos of respect for human rights, is an essential prerequisite for upholding human rights standards. In addition, an assessment is needed of police directives and regulations as these were given beforehand as well as after the event: accountability should encompass both a priori and a posteriori elements. 222 Understanding Policing 1. Internal accountability 2. Accountability to the State EXECUTIVE LEGAL Police agency Relevant Ministry (Interior / Law Management (chain of command) Justice / Home) A priori: A priori: Can include Police Policy Making • Set legal framework and guidelines • Make suggestions for regulations and Directorate or Inspectorate. In some within which police are to operate resources countries police are (also) accountable to (most notably Police Act, Criminal • Set operational objectives/ plan a Mayor or Prefect. Code, Criminal Procedures Code; operations A priori: security legislation) • Ensure disciplinary foundation within • Set strategic objectives for police A posteriori: police with system for reporting • Allocate resources • Civil and criminal proceedings initiated problems up chain of command • Formulate Code of Conduct, SOPs, by other state bodies and public Ongoing: disciplinary codes • Ensure operational independence in Ongoing: Judiciary exercising police powers • Monitor police performance A priori: • Interpret and execute government • Oversee police policy and • Require police to abide by judicial policy administration rulings relevant to police operations • Supervise chain of command A posteriori Ongoing: • Monitor operational performance and • Assess overall police performance • Independent oversight over police individual behaviour • Initiate necessary legal or operations requiring signiﬁcant A posteriori: administrative reform and/or powers (incl. arrest, detention, certain • Evaluate police performance budgetary changes investigative methods, certain means • Implement reforms that address • Take corrective action of force) human rights violations as well as A posteriori: corrective action in individual cases • Undertake judicial inquiries • Ensure corrective action within • Assess compliance with laws and disciplinary (or penal) regulations regulations during criminal, civil and administrative proceedings Internal investigative body A posteriori: International legal obligations • Investigate complaints against police A priori: internally and make recommendations • Ensure compliance of laws and for corrective action regulations with international legal obligations Internal Police Complaints Department A posteriori: • First port of call for number of Prosecution complainants. Deal with minor complaints against police and refer Ongoing: complaints to other bodies • Independent oversight over police operations requiring signiﬁcant powers (incl. arrest, detention, certain investigative methods, certain means of force) Police public relations department A posteriori • Discloses information on police performance and speciﬁc police actions as well as on incidents Police Accountability 223 3. Public accountability 4. Independent external accountability LEGISLATIVE Legislative/representative NGOs, Members of the public Statutory independent bodies A priori: oversight bodies National Parliament, Provincial,/Local • Formulate demands from police NHRIs (incl. Ombudsman), independent council Ongoing: police complaints mechanisms, independent A priori: • Direct dialogue with police on issues of auditors etc. • Pass legislation concern Ongoing: • Set objectives for police • Monitor police performance • Monitor/review police actions and policies • Approve resources A posteriori: A posteriori Ongoing: • Document human rights violations • Investigate cases and patterns of human • Monitor police performance • Pursue complaints against police rights violations • Question relevant members of • Recommend remedies government, responsible for the police The media A posteriori: A priori: • Assess police performance • Reﬂect and present demands and • Make recommendations (budgetary, expectations of police legislative changes) Ongoing: • Monitor police performance A posteriori Relevant parliamentary/council • Report on police performance including committees human rights violations Ongoing: • Monitor police performance Academics A posteriori: A posteriori • Assess police performance • Report on/evaluate police performance • Make recommendations (budgetary, legislative changes) 224 Understanding Policing © Hollandse Hoogte / Sasse / Laif Every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms (…) Preamble, Universal Declaration on Human Rights Recruitment, Selection and Training 225 9. Recruitment, Selection and Training 9.1. Introduction Many would argue that human rights compliant policing starts with the selection of the right people to become police ofﬁcers and the exclusion of those who fail to uphold human rights values and attitudes. Decisions about who becomes a police ofﬁcer and who doesn’t are based on recruitment and selection criteria. Selection and training are two sides of the same coin, the aim of which is to ensure police agencies are staffed by people able and willing to respect and protect human rights. Some attributes are difﬁcult to instill if they are not already instilled in a person – others can easily be taught. As such the challenge for selection bodies is to recognize the distinction. Training is designed to ensure that those professional skills and knowledge that are not yet present are acquired and to further shape future behaviour. Recruitment, selection and training are often seen as important tools to improve respect for human rights in its broadest sense.1 However, in practice these tools are often underdeveloped, or even completely absent, due to various reasons but most importantly due to either a lack of resources or a lack of understanding of their importance. Indeed, some countries have no developed recruitment and selection processes, and training is cut to an absolute minimum. Illiterate police ofﬁcers are still no exception. Even where these tools are adequately developed, their impact is often still minor. Police practice tends to be resistant to change and regards innovations (which tend to go along with training) with some unease. Moreover, many human rights violations are not caused by inadequate recruitment, selection and training per se but by inadequate policies and procedures guiding these. In other words, the problem is usually not with too little training, but with not knowing what to train, which is an issue that cannot be solved by police academies but rather by police authorities. In Section 9.2. we will start by exploring what the UN standards say about recruitment, selection and training. After that we will discuss recruitment and selection in Section 9.3. and training in Section 9.4. respectively. We will describe how these tools are used in practice, and what the general principles are for their implementation as an aid to improving compliance with human rights standards. In Section 9.5. we take a critical look at what the effects are in practice of recruitment, selection and training. We will close with a brief 1 ) See for example: O’Rawe, summary in Section 9.6. Note that both Amnesty International membership M. & L. Moore, 1997, Human chapters, as well as local NGOs, often focus their police engagement efforts rights on duty; WOLA, Themes and debates in public security on human rights training programs. This issue will be discussed separately in reform. A manual for public Chapter 10 as the current Chapter deals with basic training carried out by the society - Training. police themselves. 226 Understanding Policing English terminology: The terms ‘recruitment’ and ‘selection’ are often used together, and sometimes even as synonyms – which they are not. Recruitment is the process of encouraging members of the public to apply to work with the police, aiming to establish a representative pool from which future police candidates can be selected. This next step – selection – should be transparent and fair. Selection criteria should aim to achieve a representative police agency of high integrity, in which ofﬁcers meet set criteria. To some, ‘police training’ refers to basic professional training (learning police skills); to others it may refer to any educational activity carried out by the police. ‘Education’ is sometimes used as opposed to ‘training’, the ﬁrst referring to theory and the second to practical skills. Similarly ‘teacher’ and ‘trainer’ are used. However, nowadays the concept of ‘trainer’ is increasingly used to cover every sort of educational activity, be it theoretical or skills related. We will therefore only use the word ‘trainer’ encompassing both theory and practical skills. We will specify when we refer to basic police training for new recruits, and when we refer to in-service training for serving police ofﬁcers. 9.2. What the standards say on recruitment, selection and training The principle of non-discrimination is laid down in binding and non-binding international standards. It therefore follows that police recruitment, selection and training methods should be non-discriminatory: everyone meeting basic criteria should have the opportunity to apply for the police and pass selection tests. The resolution adopting the UN Code of Conduct for Law Enforcement Ofﬁcials (UN Code of Conduct) includes the following precept: “That, like all agencies of the criminal justice system, every law enforcement agency should be representative of and responsive and accountable to the community as a whole.” The preamble to the UDHR states that every individual and every organ of society “shall strive, by teaching and education, to promote respect for these rights and freedoms”. This call can be applied to police education. Police ofﬁcers do not so much need to know the exact human rights articles relevant to their work and where to ﬁnd them, but rather they need to be taught the essence of these articles: what do they mean for police practice? As the resolution adopting the UN Code of Conduct states: “That standards as such lack practical value unless their content and meaning, through education and training, and through monitoring, become part of the creed of every law enforcement ofﬁcial.”2 Article 10 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires each State Party to ensure that 2 ) General Assembly “education and information regarding the prohibition against torture are fully Resolution 34/169, adopting the UN Code of Conduct, 17 included in the training of law enforcement personnel, civil or military, medical December 1979. personnel, public ofﬁcials and other persons who may be involved in the Recruitment, Selection and Training 227 custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.” Article 11 further requires States to “keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.” It is essential that reviews feed back into training, as a means of preventing human rights violations. The Guidelines for the effective implementation of the Code of Conduct3 formulate general principles including: • “The selection, education and training of law enforcement ofﬁcials shall be given prime importance. Governments shall also promote education and training through a fruitful exchange of ideas at the regional and interregional levels.” • “Governments shall adopt the necessary measures to instruct, in basic training and all subsequent training and refresher courses, law enforcement ofﬁcials in the provisions of national legislation that is connected with the Code as well as other basic texts on the issue of human rights.” Within the Basic Principles on the Use of Force and Fire Arms there is a chapter on ‘Qualiﬁcations and Training’, containing the following articles: • Article 18: “Governments and law enforcement agencies shall ensure that all law enforcement ofﬁcials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued ﬁtness to perform these functions should be subject to periodic review.” • Article 19: “Governments and law enforcement agencies shall ensure that all law enforcement ofﬁcials are provided with training and are tested in accordance with appropriate proﬁciency standards in the use of force. Those law enforcement ofﬁcials who are required to carry ﬁrearms should be authorized to do so only upon completion of special training in their use.” • Article 20: “In the training of law enforcement ofﬁcials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and ﬁrearms, including the peaceful settlement of conﬂicts, the understanding of crowd behaviour, and 3 ) Resolution 1989/61 adopted the methods of persuasion, negotiation and mediation, as well as to by the Economic and Social technical means, with a view to limiting the use of force and ﬁrearms. Council, 24 May 1989 and Law enforcement agencies should review their training programmes endorsed by the General Assembly in its Resolution and operational procedures in the light of particular incidents.” 44/162 of 16 December 1989. 228 Understanding Policing Note that these principles can also be seen as formulating the right of police ofﬁcers to proper training in the use of ﬁrearms. Police ofﬁcers may not only violate others right to life, but also lose their own life as a result of inadequate training and equipment. 9.3. Recruitment and selection 9.3.1. Introduction Good policing starts with having the right people to do the job. This requires effective recruitment and selection procedures, ensuring that people are aware of vacancies and are willing and able to apply for jobs with the police. Of course recruitment and selection are closely connected, as recruitment will aim to target those (potential) applicants expected to meet the selection criteria. However, recruitment and selection are separate steps in the hiring of new personnel and as such are discussed separately here. 9.3.2. Recruitment 9.3.2.a. General principles Recruitment is the process of encouraging new recruits to apply to work with the police. The way recruitment procedures are set up (or are not set up) is often indicative of internal organizational values. For example, if a recruitment message communicates an image of police in which their powers to use force are highlighted (e.g. pictures of police in combat uniforms and heavily armed), this is a totally different message about the police than one conveyed by a picture of a police ofﬁcer in civil uniform talking with small children. Indeed, recruitment practices often reinforce police culture and practice, rather than seeking to achieve change. Police recruitment should demonstrate a commitment to human rights oriented policing: “that is, recruitment should be guided by criteria designed to produce a police force that is civilian, professional, rights-oriented, effective and honest. In different national contexts other criteria may also be fundamentally important, such as ensuring representation.”4 In practice, recruitment criteria often focus on someone’s physical ﬁtness to do the job rather than attitudinal aspects (selection criteria will be discussed in the next Section). In some countries police recruitment is largely based on self-selection, for example on the basis of ethnicity or religion (sometimes it is a family tradition for family members to join the police), rather than a process that seeks to draw on as diverse a group as possible to apply for the police. In many countries police are largely made up of one particular class or group, or ethnicity, in society. Recruitment procedures are often poorly developed due to a lack of resources or recruitment not being seen as a priority, or both. The corruption of 4 ) WOLA, Themes and debates recruitment processes poses distinct challenges. in public security reform. A manual for public society- Recruitment, p.1. Recruitment, Selection and Training 229 A police agency should be aware of and sensitive to the needs and feelings of all sections of the community. The overall principle for recruitment should be that it targets all sectors in society. Nevertheless, in practice there few, if any, police agencies that are indeed truly representative of their community. Police ofﬁcers tend to be predominantly men, mainly from the dominant ethnic/social group. This of course does not necessarily mean they will always be insensitive to the needs of other groups. Enhancing sensitivity to diversity issues, rather than establishing numerical representation, may in fact be just as, or even more, effective in improving community responsiveness. The issue of representativeness is also discussed in Chapters 3 and 8. This having said, a representative police agency is effectively part of the community and is more likely to be regarded as such by the public.5 Amnesty International and other organizations have fairly consistently called for minority, religious, gender and other representation within police agencies as a means of addressing discrimination.6 Seeking to establish a police agency that is truly representative of its people, means sending out recruitment messages using a wide range of channels, including radio, newspapers, posters etc., targeting a wide audience and also using those channels that can target speciﬁc groups such as newspapers targeting certain communities and radio commercials. Recruitment messages should reach all groups and communities in society. More speciﬁcally: • Representation should be at all levels within the police agency • Targets should be set and maintained for the recruitment of ethnic groups, minorities and women • Causes for low recruitment of minorities and women should be evaluated • Measures should be taken to depoliticize the culture and symbols of the police force as a means of encouraging members of diverse communities to apply 5 ) Article 25 of the European • Accessibility of recruitment ofﬁces – there should be some way for Code of Police Ethics states: people in rural areas to apply “Recruitment procedures shall • The application process should not cost too much (some countries be based on objective and non-discriminatory grounds, require various medical and administrative certiﬁcates (such as proof of following the necessary residency) that cost money to obtain screening of candidates. • Recruitment policies and selection criteria should be regularly re- In addition, the policy shall assessed aim at recruiting men and women from various sections of society, including ethnic Re-assessing recruitment and selection policies and practices means that minority groups, with the their discriminatory impact on certain groups should be evaluated, together overall objective of making with an assessment of how crucial these are for carrying out police function. police personnel reﬂect the society they serve.” For example in many countries the law and all ofﬁcial policies and documents 6 ) AI - Netherlands, 2004, are published in the country’s ofﬁcial language. As such it only seems logical Amnesty International’s to require recruits to understand that language; even if such a requirement recommendations on can be discriminatory towards certain (ethnic) groups, since ignoring this policing. A review and guide provides many examples of language criteria is likely to result in police ofﬁcers being unable to access their recommendations AI has made professional regulations and standards and therefore failing to comply with in this respect. them. 230 Understanding Policing 7 ) This example is based on a The example of Haiti personal communication with In Haiti there is a requirement that all recruits speak French – making it Rachel Neild, Open Society Justice Initiative, USA. impossible for 80% of the population to apply. However, in Haiti the legal system still runs in French and there would be real challenges if police ofﬁcers could not speak the language adequately. Requiring French speakers has created a certain class difference and urban bias in police personnel (who disliked rural assignments and saw themselves as better than “paysan” which was also a problem). There has been discussion about the creation of “agents rurales” but the idea of creating a second class police force for second class citizens has been controversial.7 All in all, the general rule should be that lowering standards is not the answer. Instead consideration should be given to how these target groups can be reached and better prepared so that they can meet the criteria. Clearly, there should be absolutely no discrimination in favour of or against any group or community as part of recruitment; the best of those available should be recruited. Moreover, as suggested before, police should carry out their functions neutrally and impartially. Having a representative agency may help to achieve this, but should in fact not be absolutely necessary for it. Diversity as a means of improving improving community relations? Human rights advocates tend to stress the importance of a representative police agency. There are several additional requirements (including under international standards) that certain police tasks should be carried out by speciﬁc ofﬁcers. For example, the carrying out of body searches should be done, in so far as possible, by ofﬁcers of the same sex. Similarly, female victims should, in so far as is possible, have the opportunity to report sex offences and other forms of violence, with female ofﬁcers. Also, as a means of enhancing community contacts, it is often believed that it would help to have police ofﬁcers of that particular community within the police, implying these would be responsible for such contacts. However, there is an ongoing debate about whether members of minority and vulnerable groups who are recruited to the police should indeed be asked to perform such speciﬁc, gender and or community- related, policing functions. It should not be the general rule and can in fact be counter-productive as it can result in the formation of specialized units dealing with sensitive issues, while leaving a dominant discriminatory police culture intact in other parts of the police agency. Moreover, it can lead to stereotyping of these particular police ofﬁcers who come to be regarded as representatives of their ‘groups’ rather than as police ofﬁcers seeking to fulﬁll their individual professional aspirations. Recruitment, Selection and Training 231 9.3.2.b. Recruiting police leadership Recruiting police leadership poses a distinct challenge. As was discussed in Chapter 8 on accountability, the effect of leadership on police practice and an agency’s ethos should not be underestimated. In most countries police leadership follow either of the leadership structures given below: • They work their way through the ranks of the agency, starting at the lowest rank moving up through the hierarchy • They follow separate recruitment and selection paths requiring that they meet higher selection standards and undergo a higher level of training (sometimes at university level, on the assumption that those with academic qualiﬁcations have a broader understating of society and its complexities) Police leadership is also recruited from outside the agency, though this is still quite rare. Indeed, leadership often reinforce existing values and practices rather than taking the lead for change. 9.3.2.c. Recruitment in situations of reform There are several issues regarding recruitment that are particular to situations of police reform following political transition from a military or other regime to democracy.8 The ﬁrst has to do with how to establish recruitment criteria and whether (and under what conditions) former military and/or security personnel (in particular those that had served the interests of the previous ruling elite, such as the Securitate, Stasi, or the former South African Police) may enter the new police agency. Particularly when seeking to establish a civilian police agency, taking in large numbers of military may undermine the process of democratization and lead to public distrust of a police agency associated with the former military and authorities. For this reason, the taking on of former combatants and other ‘former ofﬁcials’ within the police, should be guided by fair and transparent policies. In some situations it can be argued that the best option would be to entirely replace the former security agencies, including the police. However, this is usually simply impossible, as it creates a dangerous security vacuum. Indeed, during times of political transition, an upsurge in crime is often experienced, requiring quick and effective deployment of police personnel. This often necessitates the acceptance of former (military) ofﬁcers into the police, though under strict conditions (see also Section 9.3.3.b.). A second problem relates to the recruitment of qualiﬁed police leadership that are able and willing to sustain reform objectives. In situations of transition, the ‘old leadership’ is often entirely replaced (above a certain rank). Taking on new leaders may be a fundamental condition for the success of reform, as the former leadership is often characterized by corruption, authoritarianism and politicization. In situations where an entirely new police agency is created, leadership has to come from outside the agency and therefore lacks practical experience and expertise. This reality may lead to pressure to accept former 8 ) WOLA, Themes and debates military commanders as leaders, with relevant experience. If it indeed proves in public security reform. A manual for public society- impossible to exclude former military ofﬁcers from a new police agency, the Recruitment. Washington Ofﬁce on Latin America (a human rights NGO working on Latin 9 ) Ibid. American countries) urges adherence to the following principles9: 232 Understanding Policing • Incorporation should be done on an individual basis; • Military ofﬁcers should meet the same criteria as non-military; • Any military ofﬁcer should undergo rigorous screening to ensure they have never violated human rights; • All former military personnel should receive thorough training emphasizing civilian policing techniques and practices. A third problem has to do with how standards and processes for recruitment can be structured to reﬂect different aspirations and priorities of the police. When establishing an entirely new agency this in itself poses tremendous challenges for a situation in which large numbers of new recruits are required while still meeting necessary criteria of quality and professionalism. 9.3.3. Selection 9.3.3.a. General principles Recruitment aims to establish a representative pool from which future police candidates can be selected. This next step – selection – should be transparent and fair. Selection criteria should aim to achieve a representative police agency of high integrity, in which ofﬁcers meet set criteria. What selection criteria are used is very much limited by a country’s resources. Developing reliable tests is a time consuming and costly exercise that not many countries can afford. Moreover, not all countries are in a position to be able to select, as there are simply too few applicants. Selection, which really aims to predict future behaviour, is a complex process involving many factors. This is true for the technical process of selection itself and is often further complicated by various political interests that seek to inﬂuence the future of police agencies. Obviously selection should be based on merit rather than on political background or the payment of bribes. Selection should be a neutral and objective process aiming to establish a police agency that is skilled, professional, representative and respects human rights. In most countries the reality is different, with selection criteria for the police focusing on, and limited to, physical criteria, typically including height, weight and the passing of practical tests. Usually ofﬁcers are required to be of a certain age (for example between 17-30 years). Most countries require individuals to have undergone some minimal education (for example a minimum of ten years). Some countries also use more elaborate intelligence and personality tests. Personality tests typically focus on such aspects as skills in coping with stress and emotional balance. Human rights advocates will often stress the importance of evaluating the attitude of new police recruits towards human rights. They are required to have “appropriate moral qualities”. It is usually not clearly speciﬁed what exactly is meant by such requirements nor how this requirement could be assessed in practice. In some countries work is going on to develop and validate tests to measure integrity. However, this has proven to be a very complicated factor to measure in any reliable way. Interviews during which questions are asked Recruitment, Selection and Training 233 to assess ethical attitudes and past behaviour are more common. So, while measuring integrity with a test may be difﬁcult, one can still ask what kind of ethical dilemmas someone has come across in the past six months and how they have been solved. Selection criteria for individual ofﬁcers should minimally include: • Background checks for criminal records (usually those convicted of a criminal offences are ruled out, especially when these involve violence. Minor offences like speeding are sometimes accepted); • Background checks for human rights violations (these should never be accepted); • Background checks for active discriminatory behaviour (this should not be accepted). Moreover, recruits should be assessed for their sensitivity in relation to discrimination; • Physical ﬁtness (particularly necessary for those recruited to perform basic police functions); • Literacy (a minimum level of schooling is a requirement for understanding policing functions); • Language abilities (ability to speak and understand the country’s main language). Knowledge and understanding of minority languages could also be an advantage. Each police agency should have ofﬁcers within its ranks speaking such languages; • Willingness to vow an ‘oath’ that should, as a minimum, stress respect for human rights principles and to abstain from corruption. Note that selection criteria can be discriminatory in themselves. For example, physical criteria, requiring a certain height and strength as well as condition (e.g. the ability to run 100 meters within so many seconds) are often more easily met by men than women. Moreover, educational criteria can be discriminatory against those groups deprived of education. In some situations this may require lowering the standards for certain groups to ensure representation requirements are met, though this easily backﬁres against these groups (“she was only accepted for being a woman”) and as such requires sensitive communication to other ofﬁcers and society at large. For this reason some police agencies have chosen to offer additional training for recruits that do not meet certain criteria – for example language skills - until they do. ‘Job hopping’ An additional criterion for selection, when the applicant is a police ofﬁcer from another agency, should be that he or she should not have a disciplinary record for offences over a certain threshold. In some countries police ofﬁcers who have been convicted for human rights or other violations return to a similar job in another police agency. Records should be kept of convicted ofﬁcers (both criminal and disciplinary convictions) and these should be referred to and taken into account in cases of transfer and/or promotion. 234 Understanding Policing 9.3.3.b. Vetting When recruiting and selecting new police ofﬁcers, especially in situations of political transition, problems can arise in preventing the entry into the agency of those who have been corrupt or committed human rights violations, or who are otherwise lacking in integrity. Establishing a selection process that ‘weeds out’ these individuals is referred to as ‘vetting’ (deﬁned as “Integrity assessment for determining suitability for public employment”10). “Vetting usually entails a formal process for the identiﬁcation and removal of individuals responsible for abuses, especially from police, prison services, the army and the judiciary.”11 The (Northern Irish) Committee for the Administration of Justice (CAJ) has commented that, “(…) while some previous police misconduct can be corrected by retraining, counselling and early warning systems – steps must be taken to ensure that those who have abused human rights are not dealt with impunity.”12 Apart form preventing impunity, a second reason for vetting is that in order to effectively achieve change within the police and establish a new human rights compliant ethos, the creation of a new police apparatus (selecting out the old offenders) sometimes is absolutely necessary. In order for vetting to be carried out in a fair and effective way, the following issues need to be considered: • Vetting should be carried out independently. Human Rights Watch have formulated the following principles with reference to the vetting process for police in Northern Ireland:13 · The establishment of an effective and credible vetting unit; · Vetting should be made a requirement for being a police ofﬁcer; · Procedural safeguards should be such as to protect the due process 10 ) International Centre rights of all ofﬁcers, including rights of appeal etc.; for Transitional Justice in · An open process by which the vetting process is explained in detail collaboration with UNDP, 2004, to the public and methods for public participation are developed and Vetting and institutional reform in countries in transition: an advertised. operational framework. • The source and accuracy of information used in vetting processes: the 11 ) UN Secretary-General’s thoroughness of vetting depends on the availability of full and reliable Report, 2004, The rule of information, as well as a willingness to act on this information to law and transitional justice in conﬂict and postconﬂict exclude those accused of illicit activity.14 Human Rights Watch suggests societies, p.17 using the following sources of information: classiﬁed government 12 ) O’Rawe, M. and L. Moore, documents; civil actions, including out of court settlements in cases 1997, Human rights on duty, of police abuses; evidence of illegally obtained confessions; inquest p.245. 13 ) HRW, 1999, Brieﬁng depositions; ofﬁcial complaints; investigative ﬁles of the Director for Paper for the Independent Public Prosecutions; Personnel ﬁles; Community consultation; Input Commission on Policing from expert domestic and international NGOs.15 for Northern Ireland: • The standard of evidence required for exclusion: if the burden of proof Recommendations for Vetting is too high, human rights abusers may well enter the new police force; the Police Force in Northern Ireland. but if it is too low individuals may be unjustly excluded on the basis 14 ) WOLA, Themes and of rumour or circumstantial evidence that would not withstand legal debates in public security scrutiny.16 reform. A manual for public society - Recruitment. 15 ) See note 13. Additionally it is recommended that ofﬁcers should have a probationary period 16 ) See note 14. during which they may be dismissed if they fail to demonstrate aptitude and Recruitment, Selection and Training 235 possibly if members of the public provide credible information about their past or ongoing abuses. This is especially important in post-conﬂict settings in which vetting may be very difﬁcult to achieve in practice. 9.3.4. Promotion/career development Recruitment (and training) of new personnel are of course very important but not sufﬁcient in themselves. There are other important personnel issues such as appointment, transfer, reward, punishments etc. In many countries transfer of police ofﬁcers is a ‘weapon’ frequently used by politicians to persuade ofﬁcers to do their bidding. In such countries the mechanisms for reward and punishment are also often used as incentives or disincentives to favour ‘ones own men’ and sideline the honest ones. Political inﬂuence over senior police appointments is a reality in most countries and reﬂects the reality of democratic control over the executive (including the police). However, it can also be a manifestation of weak operational independence. At a minimum, policies for recruitment, appointment, removal, transfer and tenure should be transparent, objective and impartial. Awareness of human rights issues and respect for human rights principles in the performance of duty should be an important element in the appraisal of individuals in the police service. Performance monitoring - i.e. performance assessments - should be carried out on a regular basis so as to ensure that promotion results from merit rather than political or economic inﬂuence or other factors not involving police competence. Recruitment, retention and promotion strategies In 1997 the Committee on the Administration of Justice (CAJ), an NGO in Northern Ireland, published Human rights on duty: International lessons for Northern Ireland.17 The report discusses ﬁndings of research into police transition and the management of change in policing in Canada, Belgium, the Netherlands, Australia, Spain, El Salvador and South Africa. It contains chapters on representative policing and training. With regard to achieving representation it refers to various recruitment, retention and promotion strategies that are used in different countries including: • Outreach: using a wide range of channels, and recruitment materials • Bridging schemes: to help people from deprived communities to reach the standards set • Target setting • Lateral entry-schemes: so that qualiﬁed recruits from under- represented groups can enter higher up the occupational ladder • Mentoring schemes: to identify potential recruits from under- represented groups who then work with a mentor to achieve the standard needed for recruitment at different levels • Fast-tracking: for promotion of candidates from under-represented groups identiﬁed as high achievers 17 ) O’Rawe, M. & L. Moore, • Selection procedures controlled independently (i.e. by training 1997, Human rights on duty. institutes) rather than police 236 Understanding Policing • Tie-breaks: if two candidates are equal, the one from the under- represented group is chosen • Screening: for cultural sensitivity etc. • Quotas It also noted that symbols and names of and within the police should reﬂect a commitment to representation and responsiveness. CAJ makes it clear however, that changing the rules and implementing such strategies is not sufﬁcient. Organizational culture needs to be addressed as well – and legislation under which police operate should itself be non-discriminatory and unbiased. 9.4. Police training 9.4.1. Introduction In this Section we will discuss basic training for new recruits. The reality of police training varies immensely. In certain countries there is no such thing, or at least not for all ofﬁcers. In Costa Rica for example, in 2003 only one out of three police ofﬁcers had passed the basic police training course.18 Some countries lacking basic resources have to accept illiterate police ofﬁcers and those who lack the basic skills and knowledge necessary to carry out policing in accordance with any standards. This Section will ﬁrst brieﬂy discuss how police training is set up in a number of countries. We will pay particular attention to training in the use of force and ﬁrearms and training of investigative skills, as these often receive minimal attention in training practice. We will then discuss some criteria for assessment purposes: What are indicators for an effective police training program? 18 ) Eijkman, Q., 2006, 9.4.2. Police training in practice Around here I am the law! Strengthening police ofﬁcer’s 9.4.2.a. Basic police training in practice compliance with the rule of In most countries there is general agreement that police training needs to law in Costa Rica. encompass both theory and practice. The usual pattern is a period of training 19 ) See for example: AI, 2003, at a training institute for a period of between three and 18 months, often The democratic republic of Timor Leste. A new police followed by a period of ﬁeld training under the guidance of a senior police service, a new beginning; ofﬁcer.19 Preferably this senior police ofﬁcer is speciﬁcally trained to guide new AI, 2003, Afghanistan. Police recruits, though this is not always seen in practice. In most situations the time reconstruction essential for the student spends in ﬁeld training is geared towards learning how existing the protection of human rights; ofﬁcers do their jobs. In this way, learning is in fact often limited to imitation. WOLA, Themes and debates in public security reform. It is (partly) for this reason that police culture and practice are difﬁcult to A manual for public society change as the mentoring paradigm makes it difﬁcult to instil the new skills - Recruitment. and attitudes required when adopting new methodologies. Any break from the 20 ) WOLA, Themes and past is difﬁcult in such a learning environment. Police tend to be rather cynical debates in public security reform. A manual for public about training and training institutes, as they perceive that the theory doesn’t society - Training; AI, 2002, relate to the practice. It is common for new recruits entering a police agency to Policing to protect human be told: “Forget everything you were taught at the academy.” This having been rights: A survey of police said it should be noted that police training in many countries has undergone practices in countries of the Southern African Development major change during the last decade as it is increasingly reﬂecting community Community, 1997-2002. policing efforts.20 Recruitment, Selection and Training 237 21 ) This text is based on In many countries, theoretical training includes subjects like law, crime personal communication with statistics, criminology, police administration, crowd control principles, Mr. G.P Joshi, CHRI, Police Program Coordinator, India. communication strategies, conﬂicts, social disorder etc. However, sometimes 22 ) Oakley, R., 1998, Police the theoretical part of basic police training is limited to the law. This is often training concerning migrants achieved by making the students learn articles of the National Police Act, and ethnic relations. Practical criminal law and the accompanying Criminal Procedure Code by heart. Indeed, guidelines. unfortunately explanations of the law’s implications for police practice, let alone an explanation of the ‘spirit of the law’ are often absent. In the same way, theoretical training in many countries takes place in the form of one-way communication (rather than being interactive) where the trainer explains the principles and the participants ‘sit back and listen’. In many countries the practical part of police training focuses on sports, driving, marching and ﬁrearms training. Training in the use of force and ﬁrearms is very often limited to the technical use of these, without addressing the considerations that should be taken into account when using force in a speciﬁc situation. Furthermore, ‘practical’ police training often deals with speciﬁc policing situations such as writing up a ﬁne, regulating the trafﬁc, ordering members of the public not to do something etc. An aspect that is sometimes badly handled is that of training in cultural awareness.21 Many countries have a highly pluralistic and heterogeneous community, with a population that is diverse in its ethnic and cultural composition. Though in theory the police are required to treat all persons equally, in practice discrimination does take place. It is therefore important to design training strategies that will help in developing in a police ofﬁcer the understanding and attitudes required to respond to the requirements of policing a culturally pluralistic society in a professional manner. Police ofﬁcers must have a good understanding of the culture of communities to which they do not belong but which they are required to police. They should not merely be aware of cultural diversity but also appreciate the fact that all people have equal rights, and discrimination of any type on the basis of colour, caste, religion etc is prohibited. Suggested objectives for ‘cultural awareness’ training The Council of Europe has designed Practical Guidelines for police training on cultural awareness.22 These Guidelines have identiﬁed the following six basic objectives for such training: • To advance the knowledge and understanding of the police ofﬁcer in the ﬁeld of human relations • To develop better communication skills, especially in the multi-cultural context (i.e. how to avoid misunderstandings in intercultural situations) • To enhance the capacity of the police to provide a high quality of service to the public • To respect all individuals irrespective of their origins • To strengthen the conﬁdence of the police in fulﬁlling their functions in a multi-cultural society 238 Understanding Policing • To improve police ofﬁcers’ knowledge of the law and regulations relevant to immigrants and racial discrimination Some of these objectives can be kept in view while designing training programs to deal with the problems of policing a pluralistic society. The majority of police trainers are police ofﬁcers themselves. Sometimes they have received additional training on teaching methods but this need not to be the case. Apart from these police trainers it is increasingly common practice to also have social scientists as trainers, dealing with issues such as communication skills, crowd psychology and personal emotions. Moreover, as a result of community policing efforts, more and more training institutes involve community representatives in training. In some countries training institutes are part of the police system and are under the same hierarchy. However, sometimes they are placed under the Ministry of Education. Though many countries – as part of their implementation of community policing programs – are relocating their training institutes closer to communities, in many countries police training institutes remain isolated from the ‘real world’. Very often training takes place in compounds, where cadets are also accommodated. They are drilled, rather than encouraged to come to their own conclusions. Indeed, typically, a lot of time is spent on ‘marching’ skills. All in all, police training rarely reﬂects what is expected from recruits when they have completed their training. For example, while police are entrusted with discretionary powers and expected to employ them in a large percentage of their work, this is rarely reﬂected in training programs. Cadets are rather told to do what their superiors and teachers tell them to do. This indeed reﬂects the reality for those countries that have authoritarian policing systems where police discretion in the lower ranks is very limited but ignores the fact that some discretion is always there as it is so inherent to a police ofﬁcer’s job. Some countries differentiate between basic police training at police schools, and management training at police colleges. In quite a few countries it is common for senior ofﬁcers to have to study law as a precondition. In other countries every recruit enters at the same level. After this basic training, police are sometimes offered additional training courses on a range of issues, including human rights. Typically, international donors, but also national and international NGOs, provide a range of courses to police agencies on issues such as violence against women, integrity and ethics, management, etc. These are often one-off ad hoc courses rather than being integrated into wider plans and policies. As such, the effect of these courses tends to be limited, even when large numbers are involved (this issue will be discussed more extensively in Chapter 10). Recruitment, Selection and Training 239 Problems with traditional training methods In Human rights on duty, see Section 9.3.4., ﬁve problems with traditional training methods are listed: 1. Closed institutional training settings 2. Inadequate or non-existent community involvement 3. Discrepancies between theory and practice 4. Marginalisation of human rights and cultural awareness training 5. Limited evaluation and external scrutiny 9.4.2.b. Training in the use of force In practice training in the use of force and ﬁrearms is often limited to the use of ﬁrearms (the actual shooting and handling of a gun) rather than how to prevent their use. This is clearly is not sufﬁcient. The principles of proportionality and necessity must be discussed, and practiced, extensively as these are the basis for preventing potential violent situations from escalation and may prevent the actual use of (lethal) force. As referred to above, the Basic Principles on the Use of Force and Firearms incorporate the right of police to receive adequate training on the use of ﬁrearms since police ofﬁcers may not only violate the right to others but may also lose their own lives as a result of inadequate training and equipment. Training must give special attention to alternatives to the use of force and ﬁrearms, including the peaceful settlement of conﬂicts, the understanding of crowd behaviour, and methods of persuasion, negotiation and mediation, as well as to technical measures, with a view to limiting the use of force and ﬁrearms. Ofﬁcer safety should be included in the training as well, as these reduce the ofﬁcer’s sense of threat and the likelihood of resorting to force. Police and training institutes should review their training programs in the light of particular incidents where force has been used. It is important that training in the use of force and ﬁrearms, as well as training in public order management, includes role-plays and other case study-based types of training methods. Recruits should be able to practice deciding when to use what means of force – and be able to discuss how they reached such decisions. When assessing police training it is important to note whether any attention is paid to the PLAN principles (discussed in Chapter 5) and to any alternative intervention techniques. Firearms training Firearms training should be as realistic as possible. In some countries trainers use a methodology where recruits are given a weapon that is connected by laser to a screen on which a ﬁlm is projected showing an incident to which the recruit must respond. The recruit, acting as the police ofﬁcer in that particular situation, must decide what to do and account for his or her decisions. For example the case might involve a ﬁght between two armed individuals, one carrying a knife and the other a gun. The recruit can for example decide to 240 Understanding Policing draw a gun, point it at the individuals and ﬁre. For each step (drawing, pointing, ﬁring) the trainer can discuss why the recruit has chosen to do so, and how his or her choice relates to national and international standards of proportionality, necessity and legality. The video also shows what the consequences are of decisions taken. So if for example the recruit decides to shoot, the video will (if he hit the target) show a wounded or maybe killed civilian. However, if the recruit decided not to shoot, the video will show the consequences, which could be that the recruit him- or herself is shot at. No ofﬁcer should be carrying a ﬁrearm if he or she has not been trained on how to use it and passed a test successfully. Whenever new weapons are introduced, ofﬁcers should be retrained accordingly. Their continued ﬁtness to perform these functions should be subject to periodic review. Mock villages Similar to ﬁrearms training as discussed in the previous box, some police training institutes use mock villages where they can simulate all sorts of public order situations such as peaceful demonstrations, football hooliganism and riots. Such simulations sometimes involve a variety of police disciplines like mounted police, riot control units, dog units etc. These simulations are typically recorded on video and subsequently evaluated in class. A subject that often receives little attention, particularly in this context, is how police are trained in conﬂict management. For a large part police work involves being called on to intervene in (minor or major) conﬂicts. When these interventions get out of control, force is sometimes needed to restore order and tranquility. However, often force could have been avoided if the police understood how to deal with emotions and how conﬂicts can escalate. Training in communication and conﬂict management skills could serve this objective. 9.4.2.c. Training in investigative skills Despite the requirement under Article 10 of the Convention Against Torture, training in investigative skills, and more speciﬁcally the suspect interview, is not well developed in most countries. This is often used to justify police torture as if resort to violence is a result of not knowing any other way to make the suspect tell them what he or she knows. Without seeking to support this justiﬁcation, it is true that one of the remedies to torture can indeed be in teaching police ofﬁcers how to conduct an investigation (including suspect interview) in a professional way that respects human rights. In order to develop and offer such training to police, the knowledge (discussed in Chapter 7) needs to be available. Training investigative skills Some police academies make use of professional actors to train recruits in investigative techniques. Recruits are asked to prepare a suspect interview, in Recruitment, Selection and Training 241 class or individually, and subsequently are confronted with the ‘real suspect’ (the actor) and have to conduct the suspect interview in full. Everything is recorded on tape and subsequently discussed – from the perspective of communication, tactics and legality. Similarly, recruits should be able to practice any investigative method. House searches can be imitated, witness and victim interviews can be conducted with actors. They can all be practiced in ﬁctional real-life situations with trainers and actors giving feedback on how these methods were put into practice. Training in investigative skills should make it very clear that there is an absolute prohibition on torture and that police ofﬁcers have the right and the duty not to obey superior orders to commit torture. A discussion should be held on what constitutes torture and what measures are acceptable to increase the pressure on a suspect (as discussed in Chapter 7). Methods for suspect interview that are used in practice should be evaluated on a regular basis and these evaluations should feed back into future training programs. That said, training in investigative skills should make it clear that the suspect interview is but one of several investigative methods available. Recruits should learn what other methods there are in order to avoid an over-reliance on the suspect interview as the crucial information-gathering exercise. Recruits should learn how to conduct house searches, body searches, location of witnesses and witness interview, line-ups, the need for rapid response and prompt investigation of the crime scene, use of physical evidence and forensics (see Chapter 7). A particular topic that often receives little attention in training, yet is crucial for an effective prosecution, is how police record the process and ﬁndings of their investigations. Indeed, recording their ﬁndings in a manner that is lawful and able to be used at trial is crucial in meeting fair trial standards and to accountability more generally. Training is obviously not the sole answer to preventing human rights violations when it comes to criminal investigation. Many human rights violations occur for other reasons such as an inadequate judicial and legal system and the absence of forensic facilities. Such issues are not training issues but should be dealt with by the police leadership and other authorities ﬁrst. Indeed, for training to be effective at all, internal commitment, especially of police leadership, is essential. This commitment must guarantee that new recruits are stimulated and facilitated in practicing their newly taught techniques and skills. Too often, new recruits don’t get a chance to practice what they were taught and are rather told to ‘do as the others do’, thus preventing change. 9.4.3. Assessing police training from a human rights perspective In many countries human rights training, if available at all, is conducted as an isolated part of basic police training and often severely restricted in time. 242 Understanding Policing Indeed, it is not uncommon that recruits are offered a separate module on human rights – often strongly focusing on international standards and rather learning these by heart than understanding and discussing what they mean in terms of police practice. Modules on human rights are often not tied in with other more practical modules, thereby suggesting that the two are not related and that human rights training is simply something one has to ‘endure’ in order to become a police ofﬁcer. Indeed, human rights is often taught in classroom settings rather than in practical exercises, and in some situations by trainers other than police ofﬁcers, again suggesting that it is an isolated subject. However, human rights training cannot be regarded as a mere add-on to the existing curriculum; it must be treated as being at the core of the training program for all ranks. There is a common perception amongst many police personnel that human rights are an encumbrance, an obstacle to effective policing. An important aim of a training program should be to change this perception.23 Note that in Chapter 10 we will explicitly focus on the issue of human rights training as delivered by human rights NGOs. In this Section we will focus on human rights as it is incorporated in the police’s basic curriculum as well as in its ﬁeld training. In 1998 Amnesty International issued ‘A 12-Point Guide for Good Practice in the Training and Education for Human Rights of Government Ofﬁcials’.24 This guide, though applicable to all governmental ofﬁcials rather than merely police, sums up important principles for human rights training to be an effective tool for enhancing human rights awareness and compliance amongst governmental ofﬁcials. Probably the basic principle underlying all 12 principles is that human rights training should never be a ‘one-off’ stand alone activity. It should be adapted to the situational (including organizational) context, integrated in the curriculum and relate to operational practice, and most importantly it should receive follow-up in practice. We recommend that readers take note of these principles. Amnesty International’s 12 Point Guide for Good Practice in the Training and Education for Human Rights of Government Ofﬁcials 23 ) Based on personal communication with Mr. G.P 1. Prior assessment of the human rights situation is absolutely vital. Joshi, CHRI, Police Program 2. Human rights education should be one step towards achieving greater Coordinator, India. accountability. 24 ) AI, 1998, AI’s 12 Point Guide for Good Practice in the 3. Ofﬁcials should commit themselves to implementing the training Training and Education for program as an essential part of their profession. Human Rights of Government 4. The training program must be coordinated with other human rights Ofﬁcials. Please note that activities in the institution and the community. though NGOs should play a 5. Non-governmental organizations should play a key role at all stages of key role at all stages of the training program, this does not the training program. necessarily mean they should 6. Target groups for training and the goal of the course need to be also deliver the training. carefully identiﬁed. Recruitment, Selection and Training 243 7. Trainers should have some connection with the target group. 8. The teaching methods used should respect the local cultural and religious realities as well as reﬂect the human rights aims of the training. 9. The training should be practically oriented and involve participatory learning techniques. 10. The teaching materials should be practically oriented. 11. Follow-up must be integrated into the training program from the beginning. 12. There must be continuous evaluation of the impact of the program and revision in light of identiﬁed shortcomings and new opportunities. Amnesty International-Netherland’s 2004 ‘Review and guide’ which reviewed the organizations’s recommendations on policing proposed to add three principles to the existing 12:25 13. Human rights training programs should incorporate international, regional and national human rights standards as well as contextualising such information within the human rights context of the country. 14. Human rights should be integrated across the training curriculum. 15. Training and assessment should be a continuous process. As a general rule human rights need to be integrated into all police training. Two words are important is this phrase: ‘integrated’ and ‘all’. There is debate amongst police trainers as to whether human rights and police ethics should be covered in separate modules, making it possible to pay considerable attention to these topics, or rather integrate the topics into lessons dealing with police work, such as ‘public order’, ‘investigation’, ‘the role of the police’ etc. resulting in human rights being less clearly visible in the curriculum, but taught in a more practical and effective way. Human rights training could for example be integrated into lessons on the use of force while discussing principles of proportionality and necessity, without even using the word ‘human rights’. The debate will no doubt continue (one problem being that if human rights is integrated into other lessons, police can be accused of failing to pay proper attention to human rights). The best solution is probably to do both: Police need to hear about international human rights law as well as its underlying principles and how it relates to national law, but should also be provided with the practical and behavioural tools to protect and promote human rights in action. Though there may often be no need to use the term “human rights” it is important that all police from the top level of leadership understand that human rights lie at the core of policing and hear that message explicitly. Indeed, the visibility of human rights or police ethics in the curriculum is not a measure of its value or its effectiveness. Many countries have included modules on human rights in their curriculum, giving the impression that a lot of 25 ) AI - Netherlands, 2004, Amnesty International’s time is spent on this issue. This does not say anything about the effectiveness recommendations on policing. of the training. A review and guide. 244 Understanding Policing In some countries human rights training is only given to new recruits, excluding senior colleagues and managers.26 Obviously, the impact of such training is seriously hampered if new recruits note that their senior colleagues and superiors are not given such training, nor do they seem to value or practice it. Police training should reﬂect the kind of police one wants to have. If the police is required to respond to the needs of communities, they should be in a position to come into contact with these communities through trainers, resource persons, or simply because they live in these communities. If the police are expected to responsibly exercise their discretionary powers, they should get a chance to experience this in their training. If police are to be representative of their communities, police trainers should be representative of these too. If police are expected to account for their actions, police training institutes should be willing to account for the way they train their recruits. A list of questions has been formulated below that may be of help when assessing basic police training from a human rights perspective. We have formulated these as open questions. 1. Who receives basic police training? Police training should be offered to all police ofﬁcers carrying out policing functions, with no exception. 2. How long is basic training? In principle the answer is: the longer the better. Obviously this is too easy an answer. The duration of training varies from a couple of weeks to four years. Some say that 12 months is necessary to acquire professionalism.27 It seems reasonable to expect that more training will have a higher chance of achieving those objectives human rights advocates are looking for if, and only if, this training conforms to human rights principles. Indeed, four years of training could perfectly well focus on technical skills while ignoring underlying principles and values. Therefore, answering the question on duration should always go together with answering the next questions dealing with other aspects of police training such as content, teaching methods and background of the trainers. 3. What is the background of police trainers? There should be a balance between trainers with a police background and non- 26 ) AI, 2002, Policing to police trainers, as the latter can help prevent embedding a police culture that is protect human rights: A survey totally inwardly focused. These non-police trainers can be academics as well as of police practices in countries others (e.g. sports trainers). Moreover, training must be delivered by a variety of of the Southern African Development Community, people so that the diversity of the community that is to be served is reﬂected 1997-2002. in the training process itself.28 Those training the police should be qualiﬁed 27 ) WOLA, Themes and trainers, whether having a police or non-police background, with knowledge of debates in public security teaching methods and how to enhance the transfer of knowledge and skills to reform. A manual for public society - Recruitment. practice. 28 ) O’Rawe, M. & L. Moore, 1997, Human rights on duty. Recruitment, Selection and Training 245 4. To what extent do members of the public participate or contribute to police training? Members of the public can contribute to training in various ways: as trainers, as feedback groups monitoring the training, as resource persons for certain assignments etc. Training should be set up in such a way that it reﬂects responsiveness, representativeness and accountability principles. Police training should preferably not take place on isolated closed compounds where everyone is police. 5. Good training always addresses knowledge, skills and attitudes. Police work is practical work. That doesn’t mean that theory can be left out but it does mean explaining how theory (including law) relates to practice. In role-plays and skills training, theory and practice should come together. Knowing the law by heart but not being able to relate it to practice makes the law ineffective. Legal principles should be applied to practical examples. Participatory techniques should be used, as these tend to enhance learning (including the transfer of knowledge and skills from training to practice). Moreover, police training shouldn’t be restricted to teaching law (which is invariably about police powers) but should incorporate those aspects of policing which do not require police powers or indeed are meant to prevent the use of such powers. An important and often undervalued topic is the training of communication skills since it is these skills that can help to de-escalate a situation and prevent resort to force. 6. What topics are included in training? As an illustration, we suggest the following topics (listed in random order) should be included in the curriculum:29 a. The importance of impartiality in police actions b. Non-discrimination c. The importance of being responsive to communities d. Cultural and gender awareness and sensitivity e. Observance of proper procedures for the use of force, arrest and detention: proportionality, legality, accountability and necessity (PLAN) f. Application of non-violent means ﬁrst g. Investigative skills, including interview techniques (including suspect interview) h. Rights of detainees and suspects, including the right to be presumed innocent i. Victims of crime (violence against women should be part of basic police training in order to increase overall sensitivity. However, there may be established specialized units for dealing with such violence) j. Vulnerable groups and their speciﬁc rights (i.e. women, children, minorities) 29 ) See also: AI, 2002, k. The absolute prohibition of torture and the right not to obey an order to Policing to protect human torture, also in the context of anti-terrorism legislation (if applicable) rights: A survey of police practices in countries of the l. The importance of oversight and accountability, including disciplinary Southern African Development procedures Community, 1997-2002. 246 Understanding Policing 30 ) O’Rawe, M. & L. Moore, Additional topics for police leadership should include: 1997, Human rights on duty, m. The effect of leadership on establishing an ethos of respect for human p. 93. 31 ) Ibid. rights n. Operational independence and democratic oversight and the dilemmas involved o. Supervision, evaluation and performance indicators 7. Is there any follow-up to basic training? Is there a policy of ‘on-the-job- training’? On what aspects is further training offered? As was recommended by CAJ: “Training must not be restricted to new recruits but must continue throughout the career of police ofﬁcers. There has to be effective support from senior management for good training practices and the philosophy and practices of lifelong learning.”30 8. Is there some kind of (repetitive) certiﬁcation procedure to ensure that technical and other skills are kept up to date? In most countries police receive a diploma ‘for life’ upon successfully completing police training. However, for some aspects of policing, especially the use of force and ﬁrearms, certiﬁcates should be used rather than diplomas; certiﬁcates that need to be renewed at regular intervals. Not passing the test should result in the removal of powers and equipment until the respective ofﬁcer has shown that he or she has the required aptitude, skills and attitude to resume. Indeed, Article 18 of the Basic Principles on the Use of Force and Firearms requires police to have “their continued ﬁtness to perform these functions [to be] subject to periodic review.” 9. Is training evaluated? Evaluation of all training should be routine. To be truly effective it should also involve people from outside the police.31 Acquiring human rights training competencies In order to conduct training about human rights principles one needs to know about them. Many donor programs focusing on training commence with so- called train-the-trainer programs, with (usually foreign) police trainers training local police trainers in training police skills and methodologies. Sometimes local police trainers are invited to visit donor police academies to see and learn how training is carried out there. Any train-the-trainer program faces the problem of how to relate to the local realities of the target country. Trainers from donor countries typically come from a very different cultural system, with very different attitudes towards police and policing, and often with much better resources. This having been said, opening the door to other realities can prove a useful tool. Recruitment, Selection and Training 247 9.4.4. Follow-up to basic training As noted previously, training should not be restricted to new recruits. It is important to pay attention to whether human rights are incorporated into all police training, including training courses offered after new ofﬁcers have started working and for those that have been working for some time. Subsequent training includes training on new methods of use of force, additional training relating to the introduction of new policing philosophies and methodologies as well as training for those moving up the hierarchy. Police management training should clearly pay attention to the role police managers can play in establishing an ethos and practice which respects of human rights. Indeed, all training should pay attention to human rights principles and should integrate these into their curricula. 9.5. The effects of recruitment, selection and training The importance and potential impact of using recruitment procedures targeting all sectors in society, deﬁning selection criteria which reﬂect human rights principles and offering training that addresses human rights oriented skills, theory and attitudes, should not be underestimated. However, it should not be overestimated either. Both international donors and human rights advocates tend to overvalue the importance as well as the effectiveness of recruitment, selection and training in addressing human rights problems while at the same time ignoring the complexities inherent to developing effective selection and training instruments and ignoring institutional causes for human rights violations. Challenging and dealing with these institutional problems is far more difﬁcult and requires long-term commitment, whereas training can seem like a quick-ﬁx solution that is easily implemented. It could be argued that international donors like to conduct training as it can be done almost anywhere without rocking the boat too much. It is politically uncontroversial precisely because it does not necessarily change anything. It is difﬁcult to develop effective recruitment and selection methods and measuring their effects is a challenge. Moreover, the effect of training is dependant upon its reinforcement in practice. Training that is not enforced in practice, training that is not embedded in a broader policy framework, training that does not receive the full support of police leadership “reﬂected in police standing orders and in day-to-day instructions received by superiors”32, is deemed to be an ineffective way to change behaviour and as such is in fact a waste of resources. In many situations in which police are violating human rights one should question whether training is the most effective starting point for change. For example, if human rights violations result from laws not meeting international standards, campaigning for legal changes is likely to prove more effective than campaigning for improvements to police training. 32 ) AI, 2002, Policing to Deciding whether training is the most effective starting point obviously requires protect human rights: A survey a careful analysis of the respective situation. of police practices in countries of the Southern African Development Community, Police managers may be tempted to stress the importance of training in 1997-2002. achieving change as it leaves out their own role in these processes and places 248 Understanding Policing the responsibility outside their own scope of competence and responsibility. Human rights advocates should consider campaigning for improved management training rather than rank-and-ﬁle ofﬁcers training as a means of ensuring that human rights principles are enforced at leadership level. 33 ) There are many articles and reports describing police Police Culture culture. See for example It is one thing to recruit and select police from all sectors in society, thereby the Mollen Commission that ensuring that police are representative of the people they serve; it is quite investigated corruption in the another retaining them. The impact of police culture, with its (often) dominant New York Police Department. male and majority group characteristics, should not be underestimated. Three Its 1994 report described the police culture and how it aspects of police culture are visible in most police agencies worldwide: the facilitated corruption within ‘blue wall of silence’, ‘us versus them’ and police cynicism.33 These three the agency. Download from: characteristics, together with the police often being fairly conservative34, make http://www.parc.info/reports/ police extremely resistant to change and counteract efforts to improve police- 34 ) Crow, M., e.a., 2004, “Czech police ofﬁcers. An community relations as well as the integration of minorities and women within exploratory study of police police agencies . attitudes in an emerging democracy. “ “Don’t betray your colleagues”: The ‘blue wall of silence’ refers to the code of 35 ) Reenen, P. van, 1997, “Police integrity and police silence that is frequently practiced by police. The code results from police work loyalty: The Stalker dilemma.” being perceived as dangerous and the necessity of total reliance on colleagues 36 ) See note 34. in order to survive (literally). As such, loyalty is paramount within the police. This may lead to moral dilemmas when having to choose between loyalty and integrity, for example when deciding whether to disclose something that happened that was clearly wrong, or stay loyal to ones colleagues.35 “They don’t understand us”. A second characteristic is known as ‘us versus them’; us being police and them being the public. Community policing is one of the new philosophies that will help to bring the two closer and create more mutual understanding. “It doesn’t help anyway.” Police are confronted on a daily basis with difﬁcult dilemmas and choices. What’s more, they are confronted with the limited results and effects of their work. Crime persists, some people are never caught, and police managers sometimes seem to be busier managing their own careers than supporting their staff. As a result, many police turn cynical after having worked for some years.36 9.6. Summary Recruiting a representative section of society and from these selecting those with high moral standards and values is a fundamental challenge for police organizations. Some aspects of policing cannot be trained and needs to be inherent in individuals; others however – most notably practical skills and knowledge – can be trained. Recruitment, selection and training are equally important when seeking to establish a police agency that respects and protects human rights. Yet, though certainly important preconditions, they are never sufﬁcient on their own. Training that is not enforced in practice, training that is Recruitment, Selection and Training 249 not embedded in a broader policy framework, training that does not receive the full support of police leadership, is deemed to be an ineffective way to change behaviour and as such is in fact a waste of resources. To reap the beneﬁts of good training, there need to be methods of reinforcement and an ongoing visible commitment in practice, both by senior police ofﬁcers but even more so by police leadership. Therefore the training of police leadership needs special attention and careful monitoring. Moreover, an assessment of the causes of police misconduct may very well lead to the conclusion that alternative intervention strategies could be far more effective than a focus on training. 250 Understanding Policing © REUTERS / Francois Lenoir FLR/SA Amnesty International’s vision is of a world in which every person enjoys all of the human rights enshrined in the Universal Declaration on Human Rights and other international human rights instruments. In pursuit of this vision, Amnesty International’s mission is to undertake research and action focused on preventing and ending grave abuses of these rights Amnesty International’s vision and mission When engaging with law enforcement ofﬁcials, members may use the full range of techniques unless doing so in a particular context would impede or constrain Amnesty International’s ability to denounce human rights violations Decision 20 of Amnesty International’s 2003 International Council Meeting Engagement with Policing 251 10. Engagement with Policing 10.1. Introduction Since Amnesty International, and indeed many human rights NGOs, for long focused solely on the police as human rights violators, the relationship between the organization and the police was often characterised by animosity rather than trust. As a consequence, both staff and membership of Amnesty International felt more comfortable in an oppositional role rather than one seeking points of mutual interest. However, there has been a paradigm shift resulting in the police being seen as human rights protectors as much as human rights violators. In some countries, most notably those in which police are not involved in systematic human rights violations, this has presented the opportunity for a common agenda and reﬂection on the establishment of contacts with the police, or engagement as it has become known. In Chapter 1, we discussed the dynamics of the ﬁeld of Police and Human Rights. Throughout this Resource Book we have argued that when seeking to create change regarding policing some basic understanding of policing realities and dilemmas is a precondition. Chapters 2-9 have sought to present background information regarding policing issues that can be used in making a contextual analysis of the police in a target country, for which a tool is presented in appendix A. In this Chapter we will focus on various approaches human rights NGOs can take, and have taken, when seeking to inﬂuence police conduct. These approaches range from confrontation to co-operation, based on an assessment of the respective human rights situation. In Section 10.2 we will start with looking at how Amnesty International conducts its research and develops its accompanying intervention strategies. One of these is an engagement strategy, which will be explored in more detail, as it is a relatively new approach, in Section 10.3. We will look at the dilemmas involved in engagement work and present possible solutions. Engagement is often characterised by human rights training initiatives for the police. In Section 10.4 we will look more closely at this particular type of engagement. Section 10.5 presents a three step approach on how to organise various approaches and decide when to do what in order to effectively inﬂuence the police in a target country. We close of with a brief summary. Not one type of NGO It should be noted that there is no one ‘type’ of human rights NGO. On the contrary, they differ immensely. The focus of their work can range from the international to the very local; their funds can be based on membership fees, (foreign) government contributions or non-governmental donors (such as 252 Understanding Policing the Ford Foundation, Mac Arthur Foundation, Open Society Institute etc) or a combination of these – each of these creating a particular dynamic. Their work can focus on one speciﬁc aspect of human rights, or can focus on a broad variety of themes. They can work closely with the target government or focus on campaigning to oppose policies. In this Chapter we will, wherever relevant, specify what kind of NGOs we are referring to. 10.2. Amnesty International’s work in practice 10.2.1. Introduction Amnesty International is well known for its country and thematic reports as well as for its actions and campaigns. In the following Sections we will explain brieﬂy how these activities are carried out, i.e. how Amnesty International gathers its information and what it does with it, and how this relates to policing. This Section therefore strongly focuses on Amnesty International’s internal policies and procedures. 10.2.2. Gathering information: research and Work On Own Country 10.2.2.a. Research carried out by the International Secretariat Amnesty International’s work is based on information about human rights realities in countries all over the world, assessed against human rights requirements under international law. Work on a particular country starts with knowledge of certain cases of human rights abuses suggesting an underlying pattern of systematic violations. Amnesty International’s researchers receive their information through a variety of open sources (newspapers, internet) as well as through personal contacts with local NGOs, opposition leaders, academics and others. Visits to countries (known as ‘missions’) are carried out on a regular basis, during which Amnesty International staff verify and seek further information and seek a dialogue with State representatives. Country reports are published on a regular basis. Reports always include recommendations to improve the human rights situation. Country reports sometimes focus on a speciﬁc theme, for example conditions in detention centres, security legislation, abuse of force by security ofﬁcials, violence against women etc. Amnesty International also publishes thematic reports covering more than one country. In recent years the International Secretariat (IS) has developed some detailed research and action projects involving a variety of techniques (such as engagement, human rights education, advocacy of policy, publicity) on policing in particular countries, including on Afghanistan, Jamaica, the South African Development Community (SADC) countries, Timor Leste, the United Kingdom, Brazil, Malaysia and the United States of America, and on particular issues, such as the use of force and ﬁrearms, in consultation with police experts. Engagement with Policing 253 10.2.2.b. Research carried out by Amnesty International sections and structures Staff working at Amnesty International’s national sections and structures used to refrain from conducting research into individual human rights violations themselves – whether on their own or on other countries. However, this policy has recently been removed and research on own country, known as WOOC research (WOOC meaning Work On Own Country), is now undertaken in several sections. In 2005 the International Council Meeting (the organization’s highest decisive body) decided that WOOC projects “are meant to contribute to the relevance of AI as a local actor as well as maximising AI’s research potential (…)”1 Some sections are currently undertaking work on policing in their own countries. For example Amnesty International-Switzerland has issued a report in June 2007 on police abuses including ‘points of departure’ for improvement2 and Amnesty International-USA has been doing work on policing for some time, particularly focusing on Lesbian, Gay, Bisexual and Transsexual (LGBT) rights and racial proﬁling.3 Such work can facilitate both working on and engaging with the police. 10.2.3. Campaigns and actions 10.2.3.a. Introduction Based on research gathered by Amnesty International, coordinated follow- up activities are planned aimed at improving the human rights situation in the target country or campaigning to bring those suspected of having committed human rights violations (amounting to crimes under international law) to trial. The research information and campaigning strategies produced at the international level of Amnesty International have always been the basis for national campaigning strategies and action carried out by sections and structures. Amnesty International is traditionally associated with its letter-writing to authorities all over the globe. Obviously the organization has more campaigning techniques at its disposal such as petitioning, speaking tours, public events and protests, home government lobbying, contacts with 1 ) 27th International Council embassies, celebrity support and so forth. AI’s Campaigning Manual, last Meeting, Circular 57, decisions published in 2001, gives an extensive overview of campaigning strategies and of the 2005 ICM. techniques used by the organization. It states: “learning to use the right tools 2 ) AI- Switzerland, for the job at hand is part of the trade of campaigning – as is developing new 2007, Polizei, Justiz und Menschenrechte. Polizeipraxis tools for new problems.” 4 Indeed campaigning, like research, is a continuously und Menschenrechte in der evolving competency for which there are no ﬁxed methodologies. Schweiz. 3 ) See AI - USA, 2004, Threat 10.2.3.b. Police as allies and humiliation, racial proﬁling, domestic security and human Police can be the target of campaigns but can also be allies in campaigns as is rights in the United States; the case when police ofﬁcers, who are members of Amnesty International or 2005, Stonewalled. Police sympathetic to its goals, cooperate with the organization in order to enhance abuse and misconduct against the organization’s effectiveness. The Campaigning Manual includes a speciﬁc Lesbian, Gay, Bisexual and section on outreach to Military Security and Police (MSP) personnel stating Transsexual people in the U.S. 4 ) AI, 2001, AI’s Campaigning clearly that such personnel can help Amnesty International in its campaigning Manual, p. 8. work. Police members of the organization can assist in lobbying activities 254 Understanding Policing (for example join in embassy visits), join research and campaign missions, conduct lectures at national police academies in their own country, train local membership on policing issues etc, in fact, any activity for which police expertise is useful or the presence of a police ofﬁcer can help to ‘open doors’. Amnesty International’s sections in countries where police are not involved in systematic human rights violations may decide to set up professional police groups – usually receiving administrative support from the section’s secretariat. At this moment such groups exist in the Netherlands, Austria and Germany. Members of these professional groups write letters to police leadership in target countries, presenting themselves as fellow police concerned about the human rights abuses carried out by or against their colleagues. It is anticipated that receiving a letter from a colleague will impress more and hence be more effective than receiving one from a ‘civilian’. Clearly, setting up a professional police group is not always an easy task. Considerable time needs to be devoted to developing a common understanding of human rights in general and Amnesty International and its mission in particular, as well as on the tasks and responsibilities of the police group. Professional groups typically start with one or more enthusiastic volunteers; institutionalising the group within the section can sometimes be a challenging task requiring time to ensure sustainability. Obviously it is not essential to have a professional police group in order to mobilize police ofﬁcers as part of a campaign. Police ofﬁcers may also participate individually in a particular research or campaign activity. Amnesty International-Netherlands has set up a network of (retired) senior police ofﬁcers and other police experts for this purpose.5 10.2.3.c. Targeting police conduct More often than not, governments are the target of Amnesty International’s campaigns and actions, since under international law governments are responsible for implementation of and respect for human rights standards in their State territory (discussed in Chapter 2). Moreover, human rights violations committed by police are often not limited to the police: the ineffectiveness or lack of professionalism of other State agencies (both within and outside the scope of the security and justice domain) often contributes to or facilitates police misconduct. An example of this is when prosecution services pressurise police to gain confessions rather than evidence from suspects, leading to the use of torture by police. Hence the importance of carefully deﬁning the appropriate target when seeking to create change in police conduct. Sometimes it is more effective to target other State organs inﬂuencing police actions either directly or even indirectly: for example when there are other national constituencies (ombudsman, parliament, research institutes, professional bodies, victims) which have an interest in reform. Relevant 5 ) Please contact the ‘Police and Human Rights Program’ questions should include an assessment of their inﬂuence and how this can be team of AI-Netherlands for harnessed. In situations of reform there are often international donors involved further information. creating yet another potential target to approach. Engagement with Policing 255 In situations where police are targeted directly, campaigns tend to focus on the highest police management level as being responsible for their agencies. However, sometimes targeting middle or lower ranks can be an effective strategy as well, as these tend to be the levels where human rights violations are committed: receiving letters from all over the world can sometimes be an effective deterrent against future violations. There are some issues to take into consideration when seeking to target police conduct with actions and campaigns. These include: • The launch of a country report. Questions to consider are obviously where to launch it and whom to invite. It may be effective to invite a ‘friendly police ofﬁcer’ for the launch. For example in Kenya a press conference was organized for the launch of a report and was attended by a police ofﬁcer who had joined the mission on which the research for the report was based. In countries where funded police reform programs are in progress, it may be effective to organize a parallel launch in donor countries. • The campaign could focus on: • Recommending amendments to laws and procedures relating to policing • Recommendations focusing on improving police training • Recommendations focusing on police detention facilities • Concentrating on a speciﬁc police division or unit • One or more types of human rights violation by the police • Dealing with one aspect of, for example: · Use of force and ﬁrearms, such as registering, reporting and accountability · Arrest and detention, such as oversight of police detention · Public order management policy, such as inadequate training; poor planning; deﬁcient leadership; lack of concern for minimisation of the use of force; inappropriate weapons and equipment; lack of accountability • Campaigning methods should have optimal effect on the targeted police conduct. Methods to consider, beyond the ‘standard actions toolkit’, include: • The involvement of professional police groups, e.g. in letter-writing • Lobbying with a (foreign) senior police ofﬁcer • Drafting a memo to the police leadership on implementation of recommendations • Letter-writing to · The police directly · Those directing the police (e.g. Ministry of the Interior) · Those responsible for legislation (parliamentarians) · Donor countries 256 Understanding Policing • Lobbying · In the target country · In donor countries • Coalition building · With (local) NGOs · With police unions • Reaching out to police; focus on good examples, organize an event on ‘police anniversary day’ (which some countries have), carry out a needs assessment, support reform etc. 10.3. Engagement with the police 10.3.1. Brief historical overview of Amnesty International’s position on engagement with the police Identiﬁed as a potential target sector in the 1970s, Amnesty International’s work with police has undergone relatively little development at either a policy or strategic level. At the same time, other areas of Military, Security and Police (MSP) work, such as equipment/training transfers, have become increasingly prominent in AI’s campaigning and have been the focus of signiﬁcant debate and a clear evolution of policy. In December 1987 the Secretary General and the IS issued a paper which initiated a movement-wide discussion on AI’s work with military and police, resulting in an IS policy document Involving the Military and Police in Human Rights Work: Suggested Guidelines. This later policy document became the most elaborate guidance for AI sections. In 1998, the IS published the 10 Basic Human Rights Standards for Law Enforcement Ofﬁcials, a 10-point summary of international standards relevant for police in the context of human rights, and A 12-point Guide for Good Practice in the Training and Education for Human Rights of Government Ofﬁcials. Like the 1987 Suggested Guidelines, these documents have formed the main starting point for work by the IS and sections on outreach to police and military ofﬁcers and institutions over the past years. Various Amnesty International sections have set up number of engagement efforts with police, including in Spain, Ireland, Slovenia, Venezuela, Peru and the US. AI-Netherlands, as part of its Policing and Human Rights Program, has helped sections develop many such projects (and supported many of the IS initiatives) and published a Compilation of six experiences in 2001 and a Lessons learnt document in 2003.6 Also in 2003 there has been a review of AI’s 6 ) Both are internal Engagement Work with Law Enforcement Ofﬁcials, carried out by the Standing documents, published by Committee on Research and Action (SCRA), a committee working on behalf of AI-Netherlands. Contact the the International Executive Committee of Amnesty International. Anyone within Police and Human Rights Program-team for a copy. Amnesty International, considering engagement activities with police, should 7 ) 26th ICM, circular 22. read this review (hereafter referred to as the SCRA review).7 Based on this The Standing Committee on review the 2003 International Council of Amnesty International (ICM) decided Research and Action (SCRA), that: “when engaging with law enforcement ofﬁcials members may use the full an IEC Committee, was established in 2001 and has range of techniques unless doing so in a particular context would impede or been disbanded in 2005. Engagement with Policing 257 constrain AI’s ability to denounce human rights violations.”8 Since then this has been the guiding principle for engagement initiatives. Engagement has not been clearly deﬁned within Amnesty International. The SCRA review refers to ‘engagement’ as opposed to ‘outreach’, stating ‘outreach’ is no longer sufﬁcient as it implies a one-way relationship. The preferred approach to the police is one of “levels and types of engagement with different police institutions and actors. This covers a broad range of activities [lobbying, dialogue, positive inﬂuence, awareness raising and in some circumstances partnership & collaboration] suggests two-way dialogue and can also capture the necessity of “risk-assessment” and maintaining the ability to denounce human rights violations which is key to AI’s credibility.”9 There may be several factors for Amnesty International in deciding to initiate engagement with police: • The police may encounter problems in respecting human rights; engaging with police may help to stimulate discussion and reﬂection within the police about human rights in order to improve their human rights record. • Police operate in a complex environment, often facing high levels of crime and resulting in public call for policing which is ‘tough on crime’. Engagement may help to deﬁne the challenges in human rights terms and may help in achieving innovative solutions. • Where police respect human rights, engagement may help Amnesty International to enhance its knowledge and understanding of police work. Engagement can be initiated by the police or by Amnesty International, or any other NGO, as can be seen in some of the examples of engagement initiatives developed within the Amnesty International movement given below (in chronological order): Netherlands: Since 1986 there has been a Professional Group of Police in which some 150 police ofﬁcers – as volunteers with Amnesty International – regularly take part in campaigns and actions. This professional group was set up by police ofﬁcers, and is facilitated by Amnesty International-Netherlands. In 1995 an additional group was established, at the request of the International Secretariat, consisting of police ofﬁcers and experts – the Police Resource Group – to systematise the provision of advice on policing to the Amnesty International 8 ) Decision 20, 26th ICM, movement. circular 50, Decisions taken at In 2000 the section established the Police and Human Rights the ICM. Program supporting sections and the International Secretariat 9 ) Ibid. As is stated in the in their efforts to inﬂuence police conduct and initiate review: “Work with law enforcement ofﬁcials is engagement efforts. comparable to “company approaches” work.”, p. 3-4. 258 Understanding Policing Austria: As of 1999 Amnesty International-Austria has developed a strategy to raise human rights awareness within the police. The section established a Professional Group of Police, which aims to improve human rights awareness within the police by working on cases where the rights of fellow police ofﬁcers have been violated. By doing so, the professional group of police seeks to overcome potential tensions between police and Amnesty International and focus on human rights rather than differences between the organizations. Amnesty International Austria also lobbies for the implementation of human rights standards in police training and practice. The section also participates (informally) in an Independent Advisory Board on Human Rights which was established by the Ministry of the Interior, involving governmental representatives and NGOs alike. Ireland: A joint strategy has been developed in which Amnesty International has supported moves by the Irish Police to enhance its respect for human rights. Since 2000 AI-Ireland has been an advisory member of the Garda Human Rights Working Group (Garda Síochána is the name of the Irish police) and has provided advice in relation to training programmes, a declaration of police ethics, and human rights awareness and auditing. The Working Group recommended that the Garda carry out a Human Rights Audit, which it did. The audit’s report (the ‘Ionann report’) was published in March 2005; the Garda Commissioner publicly accepted all recommendations and promised full implementation. AI-Ireland in turn welcomed the Commissioner’s response and urged the Ministry of Justice to share in its responsibility. Slovenia: Contacts with the police started during Amnesty International’s Campaign against Torture (2000-2001). In 2001 AI-Slovenia started working on reform of the police accountability system, which led to the establishment of long-term engagement contacts. AI-Slovenia has since been involved in commenting on legislation for reform of police complaints procedures, human rights education of police, raising of public awareness about the legal means to challenge police misconduct (including publication of a leaﬂet), monitoring of police detention facilities and has been involved in intensive lobbying against the use of electroshock weapons by police. In 2004 AI-Slovenia, with support from AI-Netherlands, published two reports on civilian oversight of police – one concerning the accountability system and another concerning the monitoring of places of dentition (both are also available in English). Engagement with Policing 259 Engagement is typically initiated at section level rather than by the International Secretariat (IS). It may however be part of a country strategy formulated jointly by the IS team and the respective section or structure. An example is Malaysia, where the IS team worked to inﬂuence an Independent Commission of Inquiry’s report regarding police reform, and the Amnesty International structure in Malaysia carried out activities, including engagement, following the release of the Commission’s report. In such a situation complementary activities at the international as well as the national level can add value. Engagement implies a search for commonalities rather than differences. Indeed, engagement requires active and sincere efforts to deﬁne a mutual agenda. If police use their engagement relationship to avoid criticism, if they seek co-option rather than cooperation, they place a burden on the relationship that no NGO can afford to accept. However, the reverse is true too. If NGOs use their engagement relationship to ridicule police acts, they risk damaging what has been established. A ﬁrst step to introducing human rights to police work can be to discuss the rights of police ofﬁcers themselves. As was mentioned in Chapter 1, respect for human rights starts from within. Police leadership should show a clear commitment to the rights of their ofﬁcers, not by granting them impunity, but by giving them fair pay, proper working conditions and equipment, but also being aware of an ofﬁcer’s personal dignity and social position and respecting their input when making decisions on operational and policy matters. 10.3.2. Dilemmas involved in engagement Engagement with the police poses two distinct dilemmas for Amnesty International - as it does for any human rights organization: 1. The ﬁrst dilemma is about how to ﬁnd a balance between engagement and criticism. In essence it is about how to avoid being co-opted: “Non-governmental organizations dedicated to protecting human rights must learn to work with, as well as against, the police.”10 Engagement should never jeopardize the NGO’s ability to denounce human rights violations, something about which the NGO should be clear. 2. The second dilemma is about the core function of NGOs: State organs are responsible for implementing State responsibilities; NGO’s monitor and comment upon this process, being observers rather than players. Yet engagement, especially in situations where NGOs support police reform, may blur this distinction and lead to situations where NGOs start playing a more active role and (are perceived to) depart from their 10 ) Bayley, D., 2001, observation roles, creating a situation in which NGOs tend to feel less Democratizing the police comfortable. abroad: What to do and how to do it, p. 40. See also Cavallaro, Combining the two brings us to the fundamental dilemma of whether human J.L., 2003, Crime, public order and human rights for a rights organizations should continue criticising, or whether they should support discussion around this issue. (and to what extent) the State to overcome its ineffectiveness. Options range 260 Understanding Policing from fundamental scepticism regarding State institutions’ ultimate behaviour, to a basic conﬁdence regarding the States’ potential ability to solve societal problems. Obviously the challenge is how to combine both these positions; how and to what extent to cooperate without losing the ability to condemn abuses when ofﬁcials commit them. NGOs need to reﬂect on what exactly they can and cannot do, since remaining uninvolved can hardly be considered an option – certainly not when States are making sincere efforts to improve the human rights situation. It may be useful to study how these dilemmas are dealt with in contexts other than policing, for example when human rights NGOs (and environmental NGOs) engage with commercial companies. Engagement with police has many similarities with engagement with companies. Some sections within Amnesty International have units (often called Economic Relations or Business Relations) working on business and human rights. The dilemmas involved are very similar (how to establish trust while maintaining a certain distance) as is the conduct of the target for engagement. Police (should) worry about public conﬁdence just like companies (should) worry about their image. Police may engage for purely instrumental reasons, just like companies. Companies need to learn to listen to their customers, just as police need to listen to the communities they serve. The following matrix is used within this context of NGOs working on businesses. It helps to deﬁne what kind of NGO one is, or wants to be, in engagement contacts and how this facilitates or hampers such contacts.11 The matrix distinguishes between those NGOs seeking to create and/or maintain a clear distance between themselves and their target and those seeking to collaborate, and secondly between those NGOs that discriminate between the good and the poorly performing companies and those that don’t. This leads to four types of NGOs: Polariser Integrator Discriminator Orca Dolphin Scrutinises relative performance Scrutinises relative performance and attacks selected targets and selects appropriate targets 11 ) The tool was ﬁrst published in SustainAbility Non-discriminator Shark Sea lion (1996) “Strange Attractor: Ignores relative performance Ignores relative performance A strategic review of and attacks most targets and works with anyone BP’s relationships with environmental non- governmental organizations.” We’ve used the version as it was used by Chris Marsden Some companies – most notably those ignoring the environmental and social and Jörg Andriof in “Towards impact of their actions, and only responding when pressed to do so – require an understanding of corporate citizenship and how to a shark-like approach. They will need clear rules and/or the threat of costly inﬂuence it.” repercussions for them to change their behaviour. Other companies – for Engagement with Policing 261 example those that do make a strategic commitment to the environment based on pragmatism and vision – may beneﬁt from a more dolphin-type collaborative approach where win-win solutions are mutually explored. Threats of public shaming may be counter-productive; the approach should rather seek to support and encourage positive behaviour. Yet, those companies that take on full responsibility are already closely aligned with chosen NGOs and join forces when campaigning against other companies. What’s more, companies need NGOs to keep them in touch: “In fact, NGOs and large companies are made for one another, even though they may have yet to realise it (….) All powerful organizations, including large companies, need effective countervailing power to keep them performing effectively for their own beneﬁt as well as that of wider society.”12 For this to become a fruitful relationship, companies should understand their potential for having a positive impact on their environments, and NGOs must better understand the realities and complexities of running a commercial enterprise. The conclusion is that NGOs cannot survive either being a strict Polariser nor a strict Integrator. It is necessary to develop a twin track approach where the NGO adapts its strategy to the target company.13 This model can be translated to engagement with the police almost exactly. Some police actively seek to engage with the communities they serve in a joint effort to solve the communities’ problems, whereas other police agencies are still largely involved with keeping members of the public at a distance, including those representing their needs and interests, and may therefore require a more severe approach by the respective NGO seeking to inﬂuence their behaviour. The approach of the human rights NGO should match police conduct and/or reform intentions. As long as the police do not violate human rights, or have proper correction mechanisms to address violations, the relationship between NGOs and police will not be too difﬁcult. Things change of course when, during engagement, police do violate human rights and seek to avoid punishment. As a rule: if the police have committed human rights violations, they should be held accountable for them and sanctioned accordingly. However, at the same time, they may seek the help of NGO’s to prevent violations from recurring. This may present a dilemma for the NGO, leading some authors to argue that working with the police may simply turn out to be incompatible with denouncing police abuses.14 In any event, when engaging with the police, there has to be clarity on each other’s roles, and these should be respected openly 12 ) Ibid, p. 22. 13 ) Ibid. and transparently. If a human rights violation does take place, police need to 14 ) Cavallaro, J.L. 2003, Crime, deal with this ﬁrst. Only after police have taken responsibility for their actions public order and human rights (accountability) can the NGO continue to engage without being compromised. quotes the Director of CLEEN, a Nigerian NGO, stating: “It is very difﬁcult for groups to work 10.3.3. Possible solutions from different approaches in As was mentioned previously, some of Amnesty International’s sections and terms of relationship with the structures have already gained considerable experience in police engagement. government. It is more efﬁcient In 2003 the Police and Human Rights Program of Amnesty International- to address different issues Netherlands evaluated six of these engagement experiences and deﬁned and to maintain an exchange of information amongst rights lessons learnt. groups.” (p.36). 262 Understanding Policing The prime lesson is that engagement requires careful preparation. This should include making a context analysis as well as ‘self-analysis’. As the SCRA-review ﬁrmly states: “Any program of police engagement work must be grounded in solid contextual analysis taking into account both existing AI research on a country/region and further information about police structures, training and practices gathered by a section/structure and/or by the IS. This analysis should include both a risk assessment of potential engagement work by AI and consideration of any similar work with law enforcement by other NGOs.”15 In appendix A of this Resource Book an assessment tool is presented for making such a contextual analysis. Furthermore “any engagement should be based on a national strategy for police engagement work within the context of Work On Own Country policy & guidelines.”16 Police work is often understood in simple notions about what they should do, often further encouraged by media reports about police failing in their duties to maintain order. Indeed, police tend to be praised for their action rather than for their restraint.17 Not many people fully understand the complexities of police work in modern societies: “Human rights activists have far more experience with the workings of the courts than with the closed, sometimes military-dominated, and often-hostile police forces. Yet the police are on the frontline of crime ﬁghting, and, despite research indicating that abusive and discriminatory policing reduces effectiveness, efforts to introduce community policing and other responsive and prevention-oriented approaches often collapse, criticized as being “soft on crime.” The challenge of crafting reforms that can address both police accountability and effectiveness lies at the heart of human rights engagement with the need to confront both crime and ongoing state violence.”18 Role of the media It is clear that the media play a particular role. They inﬂuence public opinion regarding security matters and thus set the parameters against which ‘human rights based policing’ is measured.19 As an example, many journalists refer to suspects as ‘criminals’, thereby undermining the fundamental right to be presumed innocent. The public often accepts police violence against such persons condemned as ‘criminals’, but condemn ‘innocent’ victims of police 15 ) SCRA review, p.8. violence. In addition to the objective measuring of crime, most public debates 16 ) Knowing the facts is a point that is stressed in many are driven by perceptions. Measuring and managing perceptions is key in this reports. See for example area and a new challenge for many human rights activists. PolicyLink, 2004, Organized for change, an activist’s guide for In general, journalists tend to have little knowledge of human rights principles, police reform. 17 ) Bayley, D., 2002, “Law resulting in the neglect of the human rights aspects of individual cases. This is enforcement and the rule of exacerbated by the increasing time pressures that journalists operate under law: is there a tradeoff?” resulting in minimal checking of sources. Consideration needs to be given by 18 ) Neild, R., 2002, “The new NGOs as to how to engage with the media, including how the media inﬂuence face of impunity.” 19 ) Cavallaro, J.L., 2003, Crime, public perception and expectations. It may be worth offering human rights public order and human rights. training to journalists for example. Engagement with Policing 263 When engaging with the police it is important to realise that police ofﬁcers will usually not use human rights vocabulary and will often not relate ‘human rights’ concepts to their work. The fact that police do not use human rights vocabulary (and are unaware of international standards) obviously does not mean that they will automatically violate human rights. Indeed, they may very well still act in accordance with human rights principles. There is a debate amongst academics about whether police ofﬁcers should be given formal knowledge of human rights as such, or whether human rights principles should rather be ‘disguised’ under the umbrella of ‘professionalism’. Another concept that is often used by practitioners seeking to avoid human rights terminology is ‘ethics’ or ‘integrity’. Police and human rights NGOs may have more in common than we think! For any engagement initiative it is helpful to focus on similarities rather than differences. In fact, there are many commonalities between the police and human rights NGOs, including: • Their work is about moral matters; both police and human rights advocates are working on issues that have to do with ‘good’ and ‘bad’. Both may perceive the world in moral rather than neutral judgments. • Both have an abstract mission that can never be fully achieved. The police seek to ‘ensure security for all’; and human rights advocates strive for a world in which ‘human rights violations cease to take place.’ • Because the objectives are abstract, there are many different opinions about what the organization should do. In the case of police, some will say they should ‘catch thieves’ whereas others will say they should work on crime prevention. In the case of human rights organizations such as Amnesty International, the discussion is about the scope of the mandate and mission. • Balancing a central versus a decentralised system; any police ofﬁcer knows and understands the problems of headquarters seeking to direct their work on the street. The similarity with Amnesty International’s headquarters (the IS) and its membership structures is striking. Setting up ‘low level engagement’ with police in a country where human rights violations do systematically take place requires caution and a proper risk analysis to ensure an NGO’s independence and impartiality. However, even in such circumstances, setting up effective relationships with the police is possible and fruitful, as can be seen for example in Mozambique and Angola. In these countries, where there is no Amnesty International structure, research staff at the IS has been able to establish good contacts with the police. They aimed to show that Amnesty International understood policing and the challenges police faced and built a relationship based on mutual respect in which it was possible to hold constructive discussions about mutual interests and concerns. It is always difﬁcult to assess the impact of such initiatives, but 264 Understanding Policing they certainly provide insight into the policing situation in the country and there is reason to believe that face-to-face contacts increase the likelihood that the police will consider Amnesty International’s recommendations more closely and take them more seriously. Police and NGOs Why and how human rights NGOs and police services can and should work together A leaﬂet with this title was published in 2004 by the European Platform for Policing and Human Rights, in which both police and NGOs participate (including Amnesty International). The leaﬂet discusses the advantages and disadvantages for human rights NGOs in establishing engagement with police and vice versa. It also presents a template for police and human rights NGOs to co-operate effectively: 1. Build trust 2. Agree on aims and activities of the partnership 3. Agree on rules of engagement for the partnership 4. Identify what NGOs to work with Criteria: The NGO should be stable, accountable and able to add value to the police 5. Agree on the status of engagement in both entities 6. Agree on mechanisms of communication 7. Agree on monitoring and review arrangements to measure effectiveness 8. Resource the partnership In sum, establishing engagement requires careful reﬂection on how to put a dual role into practice. There are several rules of thumb: • Engagement requires knowledge and understanding of police work. • Start by making a contextual analysis and a self-analysis. · This should include a risk-assessment. · Are police the appropriate target? · Sections and research teams at the IS should coordinate their activities. • Though work with the police may start from individual contacts it is important to ensure anchoring within the institutional level both within the police and within Amnesty International. • Is there sincere commitment on the part of police? Is it realistic to seek such a commitment? • What are the common interests? Is there a common agenda? • Be clear on what role your NGO has: AI supports efforts to introduce human rights principles to police practice while at the same time criticising human rights abuses. Having some joint interests does not mean all interests are shared. Engagement with Policing 265 • Make sure everyone understands and preferably explicitly agrees on their roles. • Avoid internal police politics, but do be aware of different interests that are at stake. • The building of trust takes time 10.3.4. Local human rights NGOs and engagement Thus far we have discussed engagement primarily from Amnesty International’s perspective, be it the International Secretariat or the organization’s national sections and structures. However, local NGOs are sometimes in a better position to work with the police than international NGOs like Amnesty International. Indeed, international NGOs may in fact be more effective when supporting and facilitating local NGOs and local human rights defenders rather than initiating engagements themselves. The dilemmas and solutions discussed in the previous Sections are similar to those faced by local NGOs intending to initiate engagement with police. Seeking engagement with police may create resistance and meet opposition from fellow NGOs and from the NGO’s membership. It is therefore crucial when considering engagement to be transparent about aims and intentions in working with the police. It is possible that there will be local NGOs, including those supporting victims of crime, already working with police agencies. In fact, human rights based policing requires police to engage with community groups, as police have to be “responsive to the community as a whole”.20 As such it is important to be familiar with the work of other NGOs in this ﬁeld and how those with a human rights agenda can complement one another, rather than compete. NGO activities relating to the police are broadly of two types21: 1. Those concerned with violations of human rights committed by police ofﬁcers. 2. Those concerned with reforms in the working of the police as an organization. Both these activities require NGOs to have full knowledge of the organization and working of the police, their laws, rules and regulations, their plans and programmes and what needs to be done to bring about improvements. The ﬁrst group of activities include bringing police atrocities out into the open and putting pressure on the government to take action against the police. Police or government reaction to NGO allegations is usually that of denial. 20 ) General Assembly The government is generally reluctant to expose police abuse of power as the Resolution 34/169, adopting opposition could use it against them. However, where the documentation of the UN Code of Conduct, 17 December 1979. human rights violations is authentic and supported by irrefutable evidence, 21 ) The discussion on two governments can be forced to take action. Documenting human rights types of NGO activities violations committed by police personnel poses a major challenge to NGOs. is based on personal The task is quite daunting not only because of the intimidating nature of the communication with Mr. G.P Joshi, CHRI, Police Program work but sometimes also because of lack of expertise. Similarly, while working Coordinator, India. on police reform issues, lack of expertise among NGOs makes it difﬁcult for 266 Understanding Policing them to advocate successfully for concrete alternatives for restructuring the police or to recommend programmes for action within the existing legislative framework. In such situations, governments feel that although NGOs are ready and willing to condemn the police at the drop of a hat, they have no alternatives to suggest. It is therefore extremely important for NGOs to equip themselves with knowledge of police work and keep updating their knowledge. Local human rights NGOs working in an environment where people feel insecure, due to (real or perceived) high levels of crime, face particular challenges.22 In situations where the State is perceived to have lost control, the role of non-State actors becomes important. Non-State actors as diverse as human rights NGOs, but also citizen and business groups, security ﬁrms, vigilante groups, and the media, can inﬂuence the atmosphere in which the security debate takes place. Victims may feel anger and may formulate demands for retribution – often encouraged by those seeking political gain – that can be easily and quickly mobilised (as opposed to long term solutions to crime which require commitment). Politicians may manipulate public security issues for political gain. It is easy to talk people into feeling insecure, thereby paving the way for ‘law and order’ rhetoric and demands for the government to act accordingly. As a result, and frequently increased by media pressure, public opinion may view the defence of human rights as the defence of criminals, resulting in increased hostility towards human rights defenders.23 What’s more, the public may become so overloaded with security ‘news’ that they lose interest and withdraw from the debate altogether. For these reasons it is very important for NGOs to work in a manner that does not lose them public support. This need not necessarily require them to compromise with the basic principles on which their work is founded. It is a question of designing suitable strategies to convince the public that adoption of short cuts by the police does not solve the problem of crime and doesn’t increase a feeling of security. How to resolve these challenges is not easy. It can be an effective strategy to co-operate with those that are responsible for security issues, such as the police, and aim to bring them in contact with the civil society giving the latter (back) a sense of control over the areas in which they live. A study carried out by the International Council on Human Rights Policy found that local human rights NGOs have adopted the following strategies and methods for dealing with situations of high crime and negative attitudes towards human rights24: • Oversight. NGOs have adopted watchdog functions and trained others in doing so too. Many local NGOs explicitly only work for innocent victims as the public tend to be more sympathetic to such cases. If the victim is a ‘criminal’ they tend to stress the structural conditions 22 ) Cavallaro, J.L., 2003, that cause people to commit crime (low education, poverty etc) in Crime, public order and human order to increase understanding. If possible they publish statistics rights, p.32. 23 ) Ibid of human rights abuses. It is important to focus on those cases that 24 ) Ibid. can transform public opinion; working closely with the media is a Engagement with Policing 267 prerequisite. Establishing contacts with ‘ofﬁcial’ oversight bodies may help to facilitate access to State authorities. Moreover, in some countries parliamentarians seek input from NGOs when deciding on police related policies and resource allocations. • Cooperative efforts with State authorities. This can take many forms, such as: · Community policing; civil society groups may cooperate with police in community policing programs helping the police to improve their contacts with the communities they serve. Note that community policing should never be interpreted as non-police entities taking over police responsibilities but should rather be taken as an effort in which civil society groups and the police seek to mutually address the needs and worries of the people so that the police can respond accordingly, assisted by communities. Indeed, community policing starts from the premise that police can never solve crime alone. · Witness and victim protection; controlling crime is hampered by witnesses and victims being unwilling to testify against organised crime groups and corrupt police ofﬁcers. This unwillingness stems from, often legitimate, fear of retaliation if testifying, and a lack of trust in the criminal justice system. In some countries civil society groups are involved in the development and implementation of State- ﬁnanced protection programmes. · External oversight; governments have established independent oversight bodies (called ombudsman, complaints review board, police oversight commission etc.) monitoring the work of security agencies in order to improve transparency and accountability. Very often these oversight bodies work in close cooperation with civil society groups. Their staff members and chairs often come from rights groups and it is from such groups that they frequently receive important information. The initiative to engage with civil society groups may also come from the side of the police. Police may very well understand that solving crime requires cooperation with the public. In fact, some police in various regions of the world and from various backgrounds fully understand that not having access to communities is their core problem. Aiming to establish such cooperative relationships with communities often marks a government’s departure from former periods of authoritarianism and is often seen in situations of reform where the government seeks to avoid adopting ‘tough on crime’ policies. • Broad engagement in the security debate. For many human rights activists the security debate is sensitive and complex and largely uncharted. It requires further capacity building within human rights groups on issues where there is little experience. Security issues, including policing dilemmas, must be fully understood in order to 268 Understanding Policing develop a position that goes beyond theoretical principles. It also requires critical self-reﬂection and the willingness to adopt a positive attitude towards police. Focusing on ‘good practices’ can help to establish contacts with police. • Police training. This issue will be discussed elaborately in Section 10.4 below. Organizations representing victims of crime may focus on victims of crime in general or may specialize on particular crimes, such as domestic violence, rape, discrimination, or particular victims groups, such as women or speciﬁc ethnic groups. In some countries victim groups and human rights groups ﬁnd themselves in opposition. Victim groups sometimes support ‘tough on crime’ policies and practices, such as increased severity of punishment, mandatory sentences, and attacks on human rights defenders in the media. Some even believe that lowering human rights standards is necessary to combat crime. For example in Brazil, indiscriminate police violence against those living in the crime-ridden favelas is accepted and even welcomed by large sections of society, who believe, contrary to the evidence, that high levels of police killings are the only effective way of addressing violent crime. As a result, certain politicians and media regularly dismiss human rights defenders as being “defenders of criminals”. As a consequence, police sometimes may feel more comfortable with victims groups than with human rights groups, furthering the gap between the two. Different NGOs play different roles and the police conduct different functions. Police may have community police units that seek to engage with their communities, while their organized crime units may adopt harsh anti-crime measures. “In many societies, particularly in larger countries with signiﬁcant internal diversity, it is not unusual to ﬁnd several elements of both approaches [a collaborative effort and hard-line reactions to criminality] simultaneously. This fact complicates the choices for rights groups, adding many shades of grey to the decision to remain fully independent of state authorities or to work with them in designing joint, collaborative strategies.”25 10.3.5. Engagement as part of police reform initiatives An issue is whether Amnesty International and other human rights NGOs can and should support police reform, and if so what are the most effective means of doing so. Supporting reform can be an effective way of establishing a police agency that works within the human rights framework. Reform is often seen in countries with histories of police brutality, police corruption, or police ineffectiveness. Reform is most commonly initiated after a regime change from an authoritarian regime to a democratic government. As proof of the new status quo the new government seeks to prove that the police are no longer an instrument of the powerful elite, but will now serve the interests of the people. As such, Amnesty International often welcomes police reform efforts. 25 ) Ibid., p.27. Engagement with Policing 269 Supporting police reform can go together with engagement efforts but this need not be so. The dilemma for a human rights NGO remains: how can one encourage police reform while continuing to condemn abuses. “Unremitting criticism of the police can be counterproductive – distancing police from dissenting voices, making the police less willing to admit abuses, tainting reformers within the police as turncoats, and undermining the willingness of police ofﬁcers to bring other ofﬁcers to account. The exposure of abuses does not automatically lead to reform.”26 When considering support for police reform some points should be kept in mind. These include: Who are those in favour of reform within and outside the police, and what are their records? How to identify and support those in favour of reform? Is there public agreement on police reform? If not, it calling for public awareness of issues of reform should be considered ﬁrst, since the public sometimes create serious pressure for the police to be ‘tough on crime’. Indeed: “If the incidence of crime is thought to be unacceptable or increasing, police reform will be inhibited.”27 Civil society working together with police? In 2006 Amnesty International - Netherlands organized a conference28 on the role of civil society and NGOs in police reform. During the conference representatives from a range of NGOs shared their experiences and views. Participants were in agreement that there was scope for an increase in the amount of cooperative contact that NGOs could have with police, thereby opening up a whole range of innovative, and possibly more effective, forms of intervention than had been used thus far. Since every country and situation is different, a sound contextual analysis should always be made at the start. This should also help to identify points of entry or leverage. The following possible points of entry or leverage for NGOs were discussed during the conference: • Work with retired police chiefs. • Know the right people (through accident, informally or formally). In some countries (e.g. where there is a strong culture of patronage) knowing the right people is a condition for getting things done. • Keep an eye to the political interests of a country. For example countries wishing to enter the EU may be more open to initiating police 26 ) Bayley, D., 2001, reform. Democratizing the police • Seek partners who hold the carrots and sticks (e.g. OSCE, UNDP) of abroad: What to do and how to ﬁnancial resources. do it, p. 40. • Use the media. 27 ) Ibid., p. 25. 28 ) For the conference • Seek to improve the quality of service output rather than naming and report visit: www.amnesty. shaming. nl/policeandhumanrights • Use local NGOs as leverage for (inter)national NGOs and vice-versa. 270 Understanding Policing New tactics in human rights While great advances have been made in human rights advocacy over the past 50 years, human rights abuses remain widespread and persistent. From a tactical perspective, the international human rights community has largely responded to human rights abuse in two ways: • setting human rights standards (conventions and treaties) • monitoring compliance with standards Such tactics have set the stage for global human rights advocacy. But as our understanding of human rights issues deepen, so does the need to rethink strategies. The more tactics available to choose from, the more effective will be efforts to address human rights issues. Thinking strategically - and choosing the most appropriate tactics to ﬁt within a strategy - is the challenge before us all. The New Tactics in Human Rights Project, led by a diverse group of international organizations and practitioners, promotes the use and sharing of as wide a range of tactics as possible. On their website a database of tactics can be found as well as discussion on some of them. Visit: www.newtactics.org 10.4. Engagement through training and human rights education (HRE) In many of Amnesty International’s sections and structures, engagement takes the form of, and is limited to, education-related work. Training is often viewed as the basis for future police behaviour, and thus considered a prerequisite for reform. It may be due to this assumption that many initiatives by Amnesty International’s sections and structures regarding the police focus on training. There may also be a more instrumental reason behind this enthusiasm for training, as it is often perceived to be a relatively easy and efﬁcient method of engaging with the police and improving human rights sensitivity. HRE work with the police should comply with the same principles as any other engagement activity discussed before. However, there are some additional principles that will be discussed in this Section. Training as an engagement activity can include ‘critically observing’ and formulating recommendations regarding (basic) police training curricula and teaching methods, and/or can include the NGO providing training themselves to police and/or police trainers, be it for basic or in-service training. Note that Amnesty International’s sections can decide to participate in police training but only insofar as it concerns human rights related training. Amnesty 29 ) See both AI’s Campaigning International should never train police ofﬁcers in policing skills and knowledge Manual as well as the SCRA as such training is always a government responsibility.29 However, the line review. The latter states: “The organization needs to dividing training in human rights related matters and practical police training is acknowledge its limitations sometimes thin. The SCRA review gives an elaborate interpretation of what HRE within the overall context of is acceptable and what not. Amnesty International can: police training, much of which • Lobby for human rights being part of the police curriculum, that human involves operational aspects and specialized knowledge rights should be integrated and practice-oriented; well beyond AI’s capacity or • Monitor, evaluate and comment upon human rights components of role” p.9. police training; Engagement with Policing 271 • Bring together police and local human rights activists; • Give advice and information; • Perform as resource persons; • Develop human rights training materials; • Carry out train-the-trainer projects training police educators on human rights; • Perform as guest lecturers. These activities may imply a stamp of approval for police training, but this is to be avoided at all costs. Neither should Amnesty International act as an accreditor of police training. It is for this reason that Amnesty International should also avoid to engaging in day-to-day monitoring of policing. Point 1 of Amnesty International’s ‘12-point Guide for Good Practice in the Training and Education for Human Rights of Government Ofﬁcials’ (all 12 points are given in Chapter 9)30 states: “Prior assessment of the human rights situation is absolutely vital.” As indeed with any engagement activity, it should always be based on a proper wider contextual assessment as well as a needs assessment. Unfortunately this point is too rarely complied with in practice, as was found when evaluating engagement experiences: “Too often AI starts Human Rights Education initiatives with the police without previous analysis and needs assessment of policing matters and practices. HRE should not be necessarily the ﬁrst option to engage with the police – often, legal reform, accountability issues, structure and promotion, etc. require reform, before the introduction of human rights courses. At the same time human rights courses or lectures alone should not be perceived to be enough to stop human rights violations committed by the police. The developments of good policing practices (i.e. knowledge of how to carry out an interrogation without using force) go further in preventing violations than knowledge of human rights standards alone.”31 Conducting a contextual analysis is essential in order to decide whether training is indeed the most appropriate strategy for solving the human rights problems at hand. For example: training police ofﬁcers to bring suspects before a judicial authority within a reasonable time requires a judicial authority that is indeed capable of dealing with suspects. If that is not the case, lobbying to solve these problems might very well prove to be more useful than training the police. As with any engagement initiative, for any training program to be effective it should be part of an overall strategy supporting the transfer of knowledge 30 ) AI, 1998, 12-point Guide for from training to practice. No matter how well established training projects may Good Practice in the Training be, one-off occasional training sessions have little, if any, impact, even if large and Education for Human numbers of ofﬁcers are involved. Indeed, very often the focus of HRE projects Rights of Government Ofﬁcials. is on the number of participants, rather than on how the policing system will 31 ) AI -Netherlands Police and Human Rights Program 2000- be affected. Training in itself cannot accomplish any major change. Training that 2003, Lessons learnt p.9-10. is not enforced in practice, training that is not embedded in a broader policy 272 Understanding Policing framework, training that does not receive full support from police leadership, “reﬂected in police standing orders and in day-to-day instructions received by superiors”32, is deemed to be a waste of resources. We have emphasized this point when discussing (basic) police training but it is just as important when discussing human rights training carried out by, or supported by, NGOs. A demonstrable commitment from police management is a prerequisite. NGOs will need to know what the police management’s attitude is towards follow-up initiatives and whether they are willing to organise these to ensure sustainability. Police ofﬁcers can be transferred after having ﬁnished the training or may decide to leave the service altogether. However, they may also turn out to become valuable ‘ambassadors’ for human rights. The contextual assessment conducted prior to the training must include an assessment of any ongoing reform programs and a strategy will have to be developed for how the training may ﬁt in. Just as training needs to be embedded in a broader reform framework, Amnesty International’s own input must in turn be embedded in a broader strategy for engaging with the police. Developing training programs and materials for police trainers should include developing a vision for how to move forward after the program has been completed. This should include an assessment of activities being carried out by other NGOs. Amnesty International can also play a role in bringing together (local) NGO’s and police ofﬁcials to further the professional development of both parties and to help build trust and understanding. In order to decide whether participating in HRE activities is an effective way of spending resources, it is important to consider whether the section or structure has the necessary expertise, time and ﬁnancial resources:33 • Expertise: the police are a very speciﬁc target group with very speciﬁc characteristics. Basic knowledge of the police and police training is essential when engaging with the police, in whatever capacity. It is essential to have an understanding of teaching methods and insight into their effects, since those parts of police training that deal with human rights are often perceived as being unrealistic and not relating to the police job at all. It is therefore important to relate these lessons in a very clear way to practical policing, preferably integrating them into police-related topics. Addressing human rights in separate modules is often less effective. • Time: Time is a crucial success factor, both in volume as in duration. Seeking to inﬂuence police training and to implement human rights into 32 ) AI, 2002, Policing to protect human rights. training such that it supports reform is a long-term commitment. 33 ) Please note that the HRE team of AI has developed a workshop for sections and structures planning HRE work (not necessarily concerning the police). Engagement with Policing 273 • Financial resources: Amnesty International accepts government funding for HRE activities. However, we recommend careful consideration as to whether this is appropriate for police training (unless it is short-term, project based and preferably targets police trainers rather than police themselves). 10.5. How to organise approaches to police and decide what to do? First of all there must be a reason to start working on policing. Amnesty International’s work usually starts from case-based information. Based on this information the organization decides whether to carry our further research and develop a strategy with actions and campaigns and/or establish an engagement initiative. Engagement can be initiated as part of a campaigning strategy but can also start without case information of human rights abuses – most notably in countries without major human rights problems. In any event, any work on or with the police should always start with an analysis of the police in that particular context, based on which a strategy can be formulated that can subsequently be translated into a project plan. Step 1: Analyzing the police This analysis should include the following: 1. Contextual analysis: • Situational analysis; including country reports by Amnesty International and other NGOs about the current human rights situation • Legislation and policies under which police operate (including Police Act, Criminal Code, Criminal Procedures Code and other regulations governing policing) • Accountability mechanisms (internal and external) • Internal structure of the police Note that in Appendix A of this Resource Book a list of questions and issues is presented to assist in making a contextual analysis. 2. Self-analysis • SWOT analysis of the organization’s own competencies and future goals and ambitions • Assessment of what other NGOs are doing in this ﬁeld in this country 3. Formulate main concerns and specify • Who is responsible for implementation of recommendations (e.g. National Commissioner, Ministry of Interior, Parliament) • Who may support implementation • Who can effectively inﬂuence implementation (both positively and negatively) 274 Understanding Policing 4. Evaluate whether more information is needed and specify accordingly Based on this analysis, you may decide that it is more effective to target authorities other than the police as police abuse may be triggered by other factors such as legislation. If that is the case, it may prove fruitful to join forces with the police in order to improve the framework within which they operate – thus seeking a common agenda. It is important to identify areas of joint interest. These do not have to be formulated in human rights vocabulary. As suggested earlier, a good starting point could be to discuss the rights of police themselves. Step 2: Develop a strategy Following on from this information-gathering phase, a strategy should be developed. This strategy should choose between a confrontational or a more collaborative approach. The choice should be e based on an assessment of whether there is some potential within the police to effectuate change at all. If there is none, if there are no points of common interest, if the police is involved in grave human rights violations without there being internal support to stop these, engagement is out of the question. It can be helpful for Amnesty International sections and structures, as well as for local NGOs, to organize an internal workshop in which strategy and methodology can be further discussed with those involved. Inviting other partners, most notably fellow NGOs, can be useful. However, this can also be postponed until after an internal strategy has been developed. During the workshop, the following issues need to be addressed: 1. Identify main concerns 2. Identify overall goals 3. Are there points of mutual interest with the police? If so, specify 4. What is the national strategy for police engagement work (within the context of the Work On Own Country policy & guidelines)? 5. Draft a risk assessment of potential engagement work 6. What further expertise does the section need? 7. Are there sufﬁcient resources (ﬁnance, time)? 8. Are there any established police contacts that may support reform and which could help to identify areas of intervention? As a rule, always verify these with other organizations affected (political opposition, other NGO’s, journalists, etc.) or with individuals that are familiar with the situation (academics, prosecution, magistrates) 9. Decide: Is engagement viable? It can be helpful to include making an assessment of the main pitfalls and seek ways to deal with them. For example, if a lack of commitment from police top management is signalled, a strategy needs to be developed to address this. Making use of ‘friendly’ senior police ofﬁcers from other countries may be useful, as they may be able to open doors that would otherwise stay closed. The result of this analysis may be that a collaborative effort is either too ambitious or simply inappropriate, e.g. because the police seem to be Engagement with Policing 275 systematically and institutionally involved in human rights violations. It can also result in the conclusion that other NGOs may be better equipped to engage with the police. Do note that when this assessment of contextual factors to determine whether value can be added through engagement leads to the conclusion that a program should not be initiated, this can create some discomfort with those that have conducted the analysis as considerable resources (time, commitment) have already been spent. Step 3: Project planning: deﬁne objectives and how to achieve these Based on the outcomes of steps 1 and 2, a project plan should be drafted formulating objectives, entry points, activities and resources required. The project plan should include the risk-assessment and how the risk should be dealt with, including how to avoid being co-opted. It may be useful to relate the engagement initiative to other projects and campaigns taking place within Amnesty International such as the Violence Against Women campaign and the Control Arms Campaign as this may help to ensure long-term attention and may facilitate the creation of more resources. Note that the project plan may very well indicate that further information gathering is needed in order to be able to develop an appropriate and effective strategy and project plan. 10.6. Summary In this Chapter we have looked at how NGOs and the police relate to each other. We started with a discussion of Amnesty International’s activities regarding police agencies, undertaken both by the organizations’ International Secretariat as well as its sections. One of the methods used to seek to inﬂuence police conduct is ‘engagement’. Engagement requires a joint agenda where co-operation is expected to be more fruitful than confrontation or opposition. However, engagement creates some dilemmas for NGOs, most notably the dilemma of how to work together while keeping enough distance to permit criticism and how to keep roles clearly divided. The Chapter has deﬁned some ‘do’s and don’ts’ based on experiences within Amnesty International. Engagement is often characterised by training programs, or participation in these. The Chapter closes with some suggestions for how to decide what to do in relation to engagement. Any activity should always be based on information. Indeed a proper contextual analysis should always be the starting point. Based on this, Amnesty International can develop effective human rights strategies for particular situations and formulate project plans deﬁning objectives and activities. Engagement with Policing 277 Appendices 278 Understanding Policing Appendix A: Contextual Analysis & Assessment Tool 279 Appendix A: Contextual Analysis & Assessment Tool Introduction Throughout this Resource Book we have underlined the importance of making a thorough analysis of the police in a target country, looking at the broader picture in which police operate (State context, security and justice domain, cultural factors, legislation, political inﬂuence etc.) as well as how the police are empowered to carry out their functions and what safeguards there are to ensure police conduct is in line with international human rights standards. Human rights violations can be fed by any of these factors, though will usually involve a combination of them. Intervention in police actions requires an assessment that covers the entire context in which police operate. Such an assessment is indeed the starting point whenever Amnesty International’s Dutch Section’s Police and Human Rights Program is asked to support the development of human rights strategies in target countries. In Chapter 10 we presented a three step model to be followed to help decide on the most effective approach – confrontational or rather cooperative – targeting the most relevant issue or institution that is the cause of police misconduct. This should not have to be the police itself. It may very well be more effective to target the Ministry of the Interior, the prosecution services or maybe parliamentarians. The three-step model is as follows: Step 1: Analyzing the police • Contextual analysis: · Situational analysis; including country reports by Amnesty International and other NGOs about the current human rights situation · Legislation and policies under which police operate (including Police Act, Criminal Code, Criminal Procedures Code and other regulations governing policing) · Accountability mechanisms (internal and external) · Internal structure of the police • Self-analysis • Formulate main concerns and specify • Evaluate whether more information is needed and specify accordingly Step 2: Develop a strategy Step 3: Project planning: deﬁne objectives and how to achieve these In the following Sections a tool is presented to help undertake the contextual analysis. The tool consists of a series of issues, formulated as questions, 280 Understanding Policing which we suggest should be considered as part of a thorough analysis of the causes of police behaviour and which should help identify points of entry for intervention. On this basis of this, an effective strategy can be developed. To help answer these questions, we refer the reader to the relevant Chapters and Sections of the Resource Book. We recognise that this is a long list of questions, which may have the effect of deterring those wishing to initiate work on policing, since answering them can require signiﬁcant commitment. However, we do believe that answering these questions will make any future work on policing more effective, since it will be based on an informed position. It should be noted that many of the questions are duplicated under different Sections. Moreover, many will be easily answered by human rights activists who are at all familiar with the country and its police. Finding information Finding the answers to the questions posed will not always be easy. In some countries police are (fairly) open to NGOs and may be able to provide useful information about (internal) procedures and policies. Some countries give access to all relevant information on the Internet, often through a speciﬁc police website (although the reliability of such information varies). Most information relating to police will only be available in the country’s own local language. Where translations into English are available, they sometimes appear to be aimed primarily at donors. Sometimes the problem is not so much governments seeking to withhold information, but rather trying to untangle the semantics in use in a particular context. For example different terms are used to describe Standard Operational Procedures (SOPs), including ‘instructions’, ‘regulations’, ‘operational codes’, or simply ‘rules’. Note that SOPs in some countries are kept conﬁdential, as this is considered essential to police operations. This makes sense for certain aspects of policing – for example how they use certain investigative methods tactically – but not for many others. For example, there is no reason why police should not disclose what their instructions are regarding the use of ﬁrearms, how to carry out arrests and detentions, search and seizures and any other policing situation where people have a right to know how police are supposed to treat them. In some countries certain information simply does not exist. For example, not all countries monitor public conﬁdence in the police or crime levels. Some countries do not have explicit policies on policing issues. And even though all countries (we know of) do have a Police Act, or some equivalent, not all police ofﬁcers are familiar with it, nor with other relevant legislation such as criminal procedure codes. Since information may not be available on paper (or on the Internet), it is sometimes easier to obtain the relevant information from direct contact with people through interviews. Appendix A: Contextual Analysis & Assessment Tool 281 At a local level it is worth exploring the following entry points: • Defense lawyers often have good information about police misconduct • Members of parliament • Local NGOs Less obvious, and sometimes neglected sources of information, both locally as well as internationally, include the following: Local police training institutes A good entry point can often be found through training institutes as these tend to have some distance from police operations and often have more contact with the outside world. Many countries have one centralised police training system. Others have a number of different training institutes. Local and international academics In many countries research into policing issues, as well as evaluative studies into public conﬁdence and police conduct, is carried out at universities, typically within Law and or Social Sciences Faculties. International donors/trainers There is a large community of international trainers and consultants working with police agencies and training institutes all over the world. These can be a valuable source of information and as such are worth contacting. Also, training institutes tend to spend considerable resources on international projects aimed at supporting police agencies abroad. International NGOs The last decade has seen a range of programs supporting police reform in a number of countries. As such there are a number of NGOs and consultants that have built up expertise on police agencies and reform programmes in many countries of the world. NGOs speciﬁcally worth mentioning include: • Open Society Justice Initiative, an operational program of the Open Society Institute, works on law reform activities including human rights policing and police reform. See: www.justiceinitiative.org; • Commonwealth Human Rights Initiative, works primarily (in the area of police reform) on Ghana, East Africa and India. See: www.humanrightsinitiative.org; • Altus, a coalition of six NGOs based in Brazil, Chile, India, Nigeria, Russia, and the United States. See www.altus.org; • Washington Ofﬁce on Latin America, has carried out various projects in the ﬁeld of police reform in Latin America, and now includes the area of security. It also looks critically at the inﬂuence of US support for projects in this ﬁeld and the human rights consequences. See: www.wola.org. Please note that in Appendix G to this Resource Book we have included a list of NGOs working in the ﬁeld of police and human rights with their websites. 282 Understanding Policing Situational analysis In order to undertake an adequate assessment of what the police do, an analysis of the environment in which they operate is essential for two reasons. First of all it can help to identify the context of police misconduct, necessary for developing an adequate and appropriate intervention strategy. Secondly it can help to identify entry points for change. To assess the environment in which police operate, it is useful to start with a study of country reports by NGOs such as Amnesty International and Human Rights Watch. UN bodies such as the OHCHR and UNDP as well as UN Special Rapporteurs, may also provide useful information. The following questions should be considered: Overall country situation: • Level of order and sense of security • Crime level and types of crime; detection rates · Is crime monitored in a reliable way? By whom? · Do people feel ‘safe and secure’? How is this monitored? · How is crime covered in the media? · What is the political/governmental rhetoric regarding crime/policing? • Is there general agreement on the role and responsibilities of State institutions and agencies? Are there any sectors in society calling for changes in this domain? • Is there a (police, judicial) reform process going on? What are the stated objectives? Do these address the problems appropriately? Who ‘owns’ the reform process? What is the visible support from politicians, public and police? Who are the donors? • What is the role of the media? Is there freedom of press? Social settings: • Local government • Range of economic and social conditions • Local customs, cultural speciﬁcities • Vulnerable groups • NGOs (including those working on social and economic issues) • Religious organizations Rule of law attributes: • Does the country have the ‘rule of law’ institutional attributes: · Laws that are publicly promulgated, fairly enforced and independently adjudicated, and which are consistent with international human rights norms and standards and comply with any international obligations (i.e. treaties ratiﬁed) · An independent well-educated judiciary with adequate facilities · Professional law enforcement agencies, including the police, with adequate facilities and training that are operationally independent · National human rights institutions • How do you rate their effectiveness regarding: · Binding the government by law? · Ensuring equality before the law? Appendix A: Contextual Analysis & Assessment Tool 283 · Establishing and maintaining law and order? · Providing predictable and effective legal rulings? · Ensuring compliance of both law and practice with human rights standards? • Is there public conﬁdence in these institutions? Is this monitored (including monitoring of how particular ethnic, socio-economic groups in society relate to these institutions)? What is done with the results of any monitoring? • How does the overall justice system and its institutions (judiciary, prosecution, correctional facilities) function? How do the police relate to this justice system? • How is access to justice ensured (meaning all parts of the justice system including police, courts, legal assistance, legal aid etc)? Do all groups have access to justice equally? The security system: • What agencies are involved in the maintenance and restoration of security? How do the police (de jure and de facto) relate to: · The military · Internal Security Agencies · The private security sector · Traditional and informal security and justice arrangements Legislation Police work is always based on and bound by law. Law deﬁnes police tasks and functions, grants and limits police powers and sets accountability requirements. Law also deﬁnes how police relate to other agencies in the security domain, most notably the military forces. Any intervention in relation to policing should therefore always start with familiarisation with and assessment of the legislative framework within which police operate. An assessment of the compatibility of national law governing the police with international human rights law is also essential. Legislation depends on those implementing it. An analysis of legislation should therefore always incorporate an analysis of the role of the judiciary and how they operate in practice. Are judges really independent, are they well trained and well equipped to carry out their functions adequately? These questions are found under ‘rule of law attributes’ (see ‘situational analysis’). Study the following pieces of legislation: • Constitutional provisions on security in general and policing in particular • Police Act; what does it say regarding police functions, responsibilities and accountability? • Criminal Code and Criminal Procedure Code • Police codes of conduct and disciplinary codes (or civil service codes of conduct when these are absent) 284 Understanding Policing • Standard Operational Procedures • Acts governing military intervention in public order issues • Acts governing other security agencies and how these relate to police • Acts regulating private security efforts and how these relate to police • Speciﬁc security legislation, including martial law • Court rulings relevant to police practice Accountability structures It is essential to study who or what sets the conditions that dictate what the police may or may not do (i.e. the laws, resources, regulations, orders that must be established before police can act, so-called a priori accountability) and to whom the police are accountable after an action (to whom are the ofﬁcers responsible, to whom do they report, who investigates allegations of police misconduct, so-called a posteriori accountability). Accountability structures, both internally and externally, are crucial. Note that in many countries there are several police agencies and the answers to the questions posed below may differ for different agencies. Based on the accountability table, as presented in Chapter 8, the following issues should be considered: Internal accountability mechanisms: Chain of command within the police agency • Is there a clear internal chain of command, i.e. is it clear to whom every individual ofﬁcer reports and vice versa? To whom does the Police Chief answer (mayor, governor, minister)? • How are operational objectives set and operations planned? • Feedback to the relevant organs within the Ministries: Are suggestions for changes in regulations and resources made? • To what extent is decision-making delegated to lower ranks? • How are operations monitored and evaluated? • How is individual behaviour monitored and evaluated? • What instructions do ofﬁcers receive? • Can the public lodge complaints directly at police stations? Do they? How is this facilitated (or not)? • Do supervisors take corrective action within disciplinary (or penal) regulations? • Do ofﬁcers and supervisors report up the chain of command? • How is implementation of the above policies ensured and monitored? Is there some form of internal oversight? • Is there a public relations department? What are its objectives? How does it function? The Executive: Ministry (Interior / Justice) and its local equivalents or counterparts, including Police Policy Making Directorates and Police Inspectorate • What do the national policy guidelines regarding priorities and Appendix A: Contextual Analysis & Assessment Tool 285 objectives for police and security agencies state and how do these relate to local policies? • How are resources allocated? • What do SOPs look like? Who deﬁnes these and who monitors their implementation? • How actively and how frequently are police operations and overall effectiveness monitored? • How actively and how frequently are policies and police administration inspected? • Do they initiate legal or administrative reform and or budgetary changes when necessary? • Are corrective actions taken and how? • Are the police operationally independent from the ministerial bodies? Legal accountability See also ‘situational analysis - rule of law attributes’ and ‘legislation’: • In cases of police misconduct, how are civil or criminal proceedings initiated and conducted within the judicial system? Is there an independent judicial process in these cases? • Who investigates police misconduct? Does the criminal justice system provide mechanisms ensuring that an independent and effective investigation is carried out into allegations of police misconduct (which in practice means at least ensuring that the members of the same police district that was implicated in the incident are not taking part in the investigation). • Are criminal cases and civil suits against police monitored? How do the results feed back into the police organization (i.e. are any lessons learnt)? • How are police operations requiring speciﬁc powers (including arrest, detention, certain investigative methods, certain means of force) monitored and/or authorised? • How are investigative functions of the police monitored and/or authorised? • How is compliance with the laws and regulations governing policing assessed? Democratic accountability (or accountability to the public) • What objectives have legislative/representative bodies (including national, provincial, local parliaments; relevant parliamentary/council committees; Community Forums etc.) set for police? • How are resources allocated by them? • How active and how frequently are police actions monitored by them? • On what level of abstraction is police effectiveness assessed by them? • What are their recommendations regarding budget and legislative changes based on? • Are the police operationally independent from the representative bodies? What is the level of political interference? To what extent are the police independent from party politics? 286 Understanding Policing Public Accountability • How do the media voice demands and expectations of the police? • How do the media monitor the police? • How do the media report on police actions and inactions? • How do academics conduct research regarding policing issues? • How are these studies disseminated? Are they published? • How do they affect policing? • How do members of the public, including NGOs formulate and communicate demands? • Are they in direct dialogue with the police on issues of concern? • How do they monitor police actions and inactions? • Can they, and do they, pursue complaints against the police? Independent oversight • How is independent oversight of police organized? • Is there an independent police complaints body? What are its functions and powers? • Do they investigate complaints and patterns? • How many and what type of complaints are lodged against the police? What is their follow-up? • Do they recommend remedies? Internal structure of the police The following issues should be addressed. They are presented in random order. Facts and ﬁgures • How many different police agencies are there? What are their functions? In what way do they (not) co-operate? Are the police centrally organised or decentralised? To whom do the police report? Who decides on policing objectives and resources? Draw an organizational chart of the police. • Number of personnel (men/women, ethnic and other minorities); police/public ratio? • Who decides on hiring, promotions and discipline? What are the procedures? • Do police live on separate compounds, have separate sports facilities etc? • How are police resourced and equipped, including: · Salaries (do police need to take on second jobs?) · Housing (do police live and work in the same place?) · Uniforms · Weapons, including non-lethal weapons, and self-defence equipment · Communication devices · Means of transport: vehicles, other · IT equipment Appendix A: Contextual Analysis & Assessment Tool 287 • How is the budget allocated among different activities? What are budget priorities? Where do resources come from? • Is there an overall policing philosophy? Where community policing has been adopted, what is it they do? How is cooperation with community groups given effect? • What are the agency’s formal policies regarding: · Stop and search encounters · Dealing with vulnerable groups · Use of force and ﬁrearms · Injuries when in police custody • What are the numbers of police shootings? • How frequently do police use force, and what kind of force is used? • How are rights of police ofﬁcers ensured (including the right to life and security, working hours, leave, protection)? • Is there a police union? How does it operate? Effectiveness • Are the police considered effective in achieving their objectives? Responsiveness • Are the police responsive to the communities they serve? How? Do the police cooperate with (local) NGOs? With churches and others? Recruitment, selection • What are recruitment methods and selection criteria? Are recruitment policies and selection criteria regularly re-assessed? • Are there speciﬁc criteria for selecting police leadership? • Are targets set and maintained for the recruitment of ethnic groups, minorities and women? • Are recruitment and promotion criteria fair? As an example; the application process should not cost too much • How do they affect representativeness? Are causes for low recruitment of minorities and women evaluated? • Is performance regularly assessed? • What are the promotion criteria? • Are the police representative (women, ethnic and religious groups, age)? Is representation achieved at all levels within the police agency? Training • Who receives basic police training? • How long is basic training? • What is the background of the police trainers? Police/civilian? Are they trained as trainers? • To what extent do members of the public participate or contribute to police training? • Are the following topics addressed, and how? a. The importance of impartiality of police actions b. Non-discrimination 288 Understanding Policing c. The importance of being responsive to communities d. Observance of proper procedures governing the use of force, arrest and detention: proportionality, legality, accountability and necessity e. Application of non-violent means ﬁrst f. Investigative skills, including suspect interview techniques g. Rights of detainees and suspects, including the right to be presumed innocent h. Victims of crime (violence against women should be part of basic police training in order to increase overall sensitivity. However, there may be specialized units established for dealing with such violence) i. Vulnerable groups and their speciﬁc rights (i.e. women, children, minorities)? j. The absolute prohibition of torture and the right not to obey an order to torture, also in the context of anti-terrorism legislation (if applicable) k. The importance of oversight and accountability, including disciplinary procedures And for police leadership, additionally: l. The effect of leadership on establishing an ethos of respect for human rights m. Operational independence and democratic oversight and the dilemmas involved • Is police training gender sensitive? • Is there any follow-up to the basic training? Is there a policy of ‘on-the- job-training’? On what aspects of policing is further training offered? Is this considered when evaluating performance? • Is there some kind of continuous certiﬁcation procedure (to ensure that technical and other skills with regard to the use of force and ﬁrearms and other procedures are kept up to date)? • Is there a mechanism for evaluation of training? • Are police colleges adequately resourced (library, mock village etc)? • Does police leadership show commitment to training related issues? As an example, are they involved in and committed to training reform programs? Vulnerable groups • Are there special policies/action plans/strategies that address how the police deal with vulnerable groups (including women, children, ethnic, religious and cultural minorities and others?) For example: Is there a special policy, action plan, and/or strategy for dealing with violence against women? • Are there specialist police personnel to deal with (categories of) vulnerable groups? How are these trained? • Are there special legal or administrative provisions (including internal police guidelines) that address how police should deal with vulnerable groups and/or issues of discrimination? For example are there provisions for women wanting to report gender-based violence? Appendix A: Contextual Analysis & Assessment Tool 289 • Are police personnel provided with training on issues of discrimination and how to deal with vulnerable groups appropriately, and if so, what does this training involve? • How do police respond to vulnerable groups and is this response monitored and action taken accordingly? For example: are statistics kept on violence against women, on violence against ethnic, religious, cultural minorities, on racist incidents? How about statistics regarding the subsequent police responses? • What are the speciﬁc concerns of vulnerable groups vis-à-vis the police? • Are members of vulnerable groups represented within police leadership / supervisory roles? How many? • How are NGOs who represent vulnerable groups involved in policing? Analysing police operations Apart from an overall, generic, analysis of policing, it is important to look into speciﬁc types of human rights violations and the possible causes or contributing factors of these. Before this can be done however, a more general assessment is necessary. We therefore recommend that the previous questions should be considered in advance of tackling the following issues that relate to speciﬁc types of violations. Use of force and ﬁrearms Analyse policies relating to use of force including: • Who is involved in formulating policy? • What means of force are available to the police agency? Do they include less than lethal weapons? • Who uses force and what kind of force? What equipment do ordinary ofﬁcers carry? What self-defence equipment (e.g. bullet proof vests) do they have? • Are there special units for rapid intervention/riot control? Are there special gun units/sharpshooters? Who decides on their deployment? • How does management monitor and control the use of force? How is force usually justiﬁed? Identify the reasons for unnecessary, disproportionate or illegal use of force, considering: • Legal framework – Constitution, Police Act, Codes of conduct or ethics • Standard Operational Procedures (if available) • Operational independence of police agency • Leadership, public statements by Interior Ministry or Chief of Police • Training, including management skills • Equipment (including transport and communications) • Complaints and accountability systems • Expectations of the public 290 Understanding Policing Consider the chain of command control and inspection system: • How are ofﬁcers supervised? Do they receive clear instructions? Can they ask for advice? • What are the reporting procedures and what is done with the reports? • How often are inspections carried out and with what effect? • How is use of force evaluated? How does the evaluation feed back into policy guidelines, SOP’s and training? Analyse the different situations in which force is used in accordance with the PLAN principles (Proportionality, Legality or lawfulness, Accountability and Necessity) including: • Making an arrest • Immobilizing a dangerous person or persons • Restraining detainees or others who may resist police or who may need to be restrained for their own safety – this would include transporting prisoners • Preventing a crime • Crowd control • Entering and searching premises for the purpose of arresting people or seizing evidence • Self defence Analyse the different situations in which ﬁrearms are used (use the same categories as above). Look for patterns of abuse, for example in different parts of the city/country, in different policing situations. Consider crime statistics: What is the level of violent crime? Are statistics used to ‘justify’ heavy-handed techniques or political use of the police? How often do police become victims of criminals? How many are killed or injured when on duty? Public order management The following points are provided in addition to those relating to use of force and ﬁrearms (above) to help assess police abuses in the context of public order management (crowd control). • In what situations do the police use force (type of incident, legal or illegal public order events, numbers involved, level of crowd violence, if any)? • Are the laws on the right to assembly in conformity with international standards? • In relation to speciﬁc situations: · What was the nature of the public order event (spontaneous gathering, lobby group etc. If the latter, what are their aims and their history; and what is the government policy towards them)? Appendix A: Contextual Analysis & Assessment Tool 291 · What potential risks did the public order event pose for those participating in the incident including bystanders and police? · Could use of force have been avoided? · How did police prepare for the event – intelligence gathering, liaising with community groups? · What police resources were used (numbers of police, types of weapons and other equipment, including dress and defensive equipment)? · What kind of force was used (how much force; apparent intention; strategic or indiscriminate; PLAN)? · What differentiation tactics were used and what was the rate of escalation/de-escalation (warnings, cordons, less than lethal weapons, lethal force – PLAN)? · What was the outcome of the use of force (number and nature of casualties)? · In cases where one or more shots were ﬁred or one or more persons injured, what did the police do (assistance to victims, protection of the scene for inquiry)? • Consider whether attitudes towards the use of force are related to the type of police agency or the units deployed. A police agency which is organized along more military lines will emphasise its authoritative attitude and the need to prevent rioting, while another agency that sees itself more as a service may emphasise collaborative crowd- management. Arrest and police detention At the outset it is important to distinguish between arrest, detention and suspect interview. These are all different situations, aiming to achieve different things and governed by different legal provisions. Arrest: • Who has the power to arrest? • Do the police have discretionary powers concerning arrest? • Do the police need an arrest warrant? • What are the standard operational procedures for arrest? • Are these kept under systematic review? • How are ofﬁcers trained to make arrests? How are they trained to use · Handcuffs · Pepper sprays and other chemicals · Open- and closed hand techniques · Other means of force • How much time in training is spent on social skills? • How are de-escalation techniques trained? • Are arrests ever evaluated? If so, what is done with these evaluations? • Is the quality of an arrest discussed in performance appraisals? • Who may authorise the use of special methods for the arrest (such as dogs, arrest squads etc)? • Are there special provisions for arresting women? 292 Understanding Policing • Are police ofﬁcers ‘monitored’ on their attitude when arresting persons? • How many complaints are registered after arrests? What is the content of these? • What proportion of arrests are withdrawn? Detention: • Who is responsible for police detention? • How is police detention organised? · At the police station · Elsewhere • How are the rights of detained persons safeguarded? How are these communicated to the responsible ofﬁcers? • How are those responsible for police detention trained? • Are there separate provisions for women, children, sick, mentally ill etc. Is there a special procedure in place for dealing with these groups? • What do police cells look like? • How many people are held in one cell? • Do detainees have access to medical doctors? How is the access ensured in practice (presence of the police ofﬁcers, are doctors independent from the police)? Are reports kept of this? • Are detainees medically examined if injured? • Are there facilities for private consultation with the detainee’s legal representative? • Are regulations for detention kept under systematic review? • How many complaints are there about detention? What is the content of the complaints? • Is there a system of independent oversight? • Is a record (time of arrival, state of health etc) of detainees kept? Criminal investigations • Who is responsible for criminal investigations (is it ‘general’ police ofﬁcers or is there a separate investigative agency?)? How are they trained? • Who may initiate a criminal investigation? • Under whose authority does criminal investigation take place? • How do police deal with scenes of crimes? • At what stage can someone be identiﬁed as a suspect? • What kind of investigative methods are used, apart from the suspect interview? What is the legal basis for their use? How is their use accounted for? What happens when methods are used unlawfully (e.g. a house search)? Are methods used proportionately? • Is forensic expertise available? How are these forensic specialists trained? Are they independent? Is there the option of a second opinion? • Are there SOPs regarding how to carry out a suspect interview? Are any reviews of interview rules, instructions, methods and practices disclosed? How does this feed back into training and new instructions? Appendix A: Contextual Analysis & Assessment Tool 293 • How are ofﬁcers trained to conduct suspect interviews? • Are suspect interviews recorded? • Are suspect interviews conducted by one or two (or more) ofﬁcers? • How effective are the police in investigating crime in general? What assists or hinders effective investigation? • What is the role of prosecutors, judges, defence lawyers etc. in counteracting police abuse? • What are the rules of evidence? • What information is accepted as evidence? • Is forensic evidence accepted in court? • What forensic facilities are available? • Can people lodge complaints about criminal investigations? How is compensation safeguarded? After the contextual analysis Based on the contextual analysis it is important to prioritise the main concerns. Moreover, it is essential to identify who may be allies and who might undermine reform. It can help to know who is ultimately responsible for the police, to whom the police chief reports (i.e. who controls the police) and who can support implementation. It can also help to specify the ‘entry points for change’, or who – or what – can leverage change (e.g. a legislative change may in some situations be easier to achieve than the establishment of an independent complaints mechanism). Identifying these entry points can also result in the conclusion that more information is needed ﬁrst. Having gathered sufﬁcient information, a strategy can be formulated as to how to approach the police effectively. Such an approach can focus on police misconduct, likely to result in a rather confrontational approach, or can focus on how to strengthen the police’s resistance to misconduct. The latter in particular creates opportunities for a focus on common interests, rather than differences, opening up the possibility for more long-term engagement. Combined approaches are clearly possible too; engagement should never mean that criticism is no longer possible. The following issues should be considered: 1. Identify main human rights concerns 2. Identify overall intervention goals 3. Are there points of mutual interest with the police? If so, specify 4. What is your policy for police engagement work? 5. Draft a risk assessment of potential engagement work 6. What further expertise do you need? 7. Are there sufﬁcient resources (ﬁnance, time)? 8. Are there any established police contacts that may support reform and which could help to identify areas of intervention? As a rule, always verify these with other organizations affected (political opposition, other NGOs, journalists, etc.) or with individuals that are familiar with the situation (academics, prosecution, magistrates) 9. Decide what strategy to apply: Is engagement viable? 294 Understanding Policing After having deﬁned the strategy, the actual project plan can be drafted, formulating objectives and activities as well as a time line. We hope this approach will help you formulating a project that is well grounded and likely to be effective when seeking to enhance police compliance with human rights. Relevant readings Over the last few years a number of works have been published on how to assess police agencies from a human rights perspective. These include: Policing in a democratic society - Is your police service a human rights champion? Published in 2000 by the Council of Europe’s Joint Informal Working Group (in which both police and NGOs participate), this document sets out a number of indicators relevant to human rights oriented policing. It aims to offer basic guidance for day-to-day policing and as such addresses police ofﬁcers directly and invites them to use it to assess their own police. ‘Policing’ is broken down into seven components: basic values, staff, training, management practice, operational policing, structure and accountability. Each component is represented in a statement that is generally agreed to reﬂect the principles of professional policing. Consequently ‘tests’ are formulated, the purpose being to stimulate reﬂection. With each test a set of performance indicators is given to be used as a sort of a checklist for a given police service. This guide has been translated in many different European languages. Contact the Council of Europe to ﬁnd out about the language of your interest. The police that we want. A handbook for oversight of the police in South Africa This handbook for assessing police performance in countries undergoing democratic transition was published in 2005 by the South African Centre for the Study of Violence and Reconciliation in joint cooperation with the Open Society Justice Initiative. The police that we want identiﬁes ﬁve areas of democratic policing and provides key measures for evaluating performance in each area. The ﬁve are: the protection of democratic political life; police governance, accountability and transparency; service delivery for safety, justice and security; proper police conduct; and the police as citizens. Written primarily for application in South Africa, the handbook follows international practices in policing and police oversight and can be adapted for use in other countries by all those supporting and overseeing police reforms. Measuring progress toward safety and justice: A global guide to the design of performance indicators across the justice sector The guide was published in 2003 by the Vera Institute of Justice and is written for programme managers responsible for improving the delivery of safety, security and access to justice anywhere in the world. This tool is useful for everyone interested in institutional reform in the safety and security sector. Appendix A: Contextual Analysis & Assessment Tool 295 It argues that the use of particular indicators must be dependent on the particular process of reform in a given country. The guide, which discusses all institutions within the safety and security sector of which the police is but one, describes what a speciﬁc institution is supposed to do, what traditional indicators are used to measure performance in this area, what additional indicators might be used and the strengths and weaknesses of these. Human rights on duty The Northern Irish Committee on the Administration of Justice (CAJ) published a 300-page report called Human rights on duty- International lessons for Northern Ireland in 1997. The report discusses ﬁndings of research into transition and the management of change in policing in Canada, Belgium, the Netherlands, Australia, Spain, El Salvador and South Africa. It has chapters on representative policing and training, accountability structures and transition. It concludes that policing problems are similar in different countries and differ more in degree than in nature. The report distils internationally recognized principles against which policing arrangements must be measured. The report can be ordered through CAJ’s website at www.caj.org.uk. Democratizing the police abroad, what to do and how to do it? This document formulates some 87 lessons that have been learnt by observers and participants about the process of changing police organizations. A ‘lesson’ is generally agreed upon, based on experience and pertains to the goals of democratic development. For this document some 500 books and reports have been studied, resulting in an exhaustive bibliography that according to the author is ‘the largest number of materials on efforts to change police organizations ever collected’. The document targets reform efforts to establish ‘democratic policing’; democratic being used as a synonym for ‘human rights oriented’. The document was developed for the US Department of Justice. Appendix B: Bibliography 297 Appendix B: Bibliography Ashby, D.I., “Policing neighbourhoods: Exploring the geographies of crime, policing and performance assessment”, Policing & Society, vol. 15, number 4, December 2005, pp. 413-447. Association of Chief Police Ofﬁcers (ACPO) • Manual of Guidance on Keeping the Peace • Manual of Guidance on Police Use of Firearms • Police Dog Training and Care Manual • Stop and Search Manual All ACPO materials can be downloaded from: http://www.acpo.police.uk/asp/ policies/policieslist.asp. Bailey, W., “Less-than-lethal weapons and police-citizen killings in US urban areas”, Crime and delinquency, vol. 42, no.4, oct. 1996, pp. 535-552. Baker, B., “Multi-choice policing in Uganda”, Policing and Society, vol. 15, no.1, March 2005, pp.19-41. Bayley, David, Police for the future, 1994, Oxford University Press, NY. Bayley, David, “The contemporary practices of Policing: A Comparative view”, In: Civilian police and multinational Peacekeeping – A workshop series. A role for democratic policing. National Institute of Justice, US Department of Justice, 1997. Download from: http://www.ncjrs.org/pdfﬁles/172842.pdf. Bayley, David, Democratizing the police abroad: What to do and how to do it, National Institute of Justice, US Department of Justice, June, 2001. Download from: http://www.ncjrs.org/pdfﬁles1/nij/188742.pdf. Bayley, David & Clifford Shearing, The new structure of policing. Description, conceptualization and research agenda, National Institute of Justice, US Department of Justice, 2001. Download from: http://www.ncjrs.org/pdfﬁles1/ nij/187083.pdf. Bayley, David, “Law enforcement and the rule of law: is there a tradeoff?”, Criminology & Public policy, vol. 2 (1), 2002, pp. 133-154. Bratholm, A., “Police violence in the city of Bergen: A marathon case concerning the rule of law and human rights”, Policing & Society, vol. 15, no.4, dec. 2005, pp.400-412. Broeck, T. van der., “Keeping up appearances? A community’s perspective 298 Understanding Policing on community policing and the local governance of crime”, Policing: An International Journal of Police Strategies & Management, vol. 25, no.1, 2002, pp.169-189. Bruce, D. and R. Neild, The police that we want: a handbook for oversight of police in South Africa. Centre for the Study of Violence and Reconciliation in association with the Open Society Foundation for South Africa and the Open Society Justice Initiative, 2004. Download from: http://www.justiceinitiative.org/db/ resource2?res_id=102519. Cachet, A., Politie en sociale contrôle, Gouda Quint BV, Arnhem, 1990, the Netherlands. Cassese, A., International law, second edition, Oxford University Press Inc., New York, 2005. Cavallaro, J.L., Crime, public order and human rights, Council on Human Rights Policy, 2003. Download from: http://www.ichrp.org/index.html?project=114. Chambers 21st Century Dictionary, Chambers Harrap Publishers Ltd, 1999. Chevigny, Paul, Edge of the knife, police violence in the Americas, The New York Press, New York, 1995. Commonwealth Human Rights Initiative (CHRI), Police accountability: Too important to neglect, too urgent to delay, 2005. Download from: http://www. humanrightsinitiative.org/. Council of Europe • Directorate of Human Rights, Joint Informal Working Group (2000) Policing in a democratic society – Is your police service a human rights champion? Download from: http://www.coe.int/T/E/Human_rights/policedemsoc_ eng.pdf. (Please note that this document is also available in French, Russian, Dutch, Catalan and Slovenian from the website of the European Platform on Police and Human Rights – see below). • Group of Specialists on Internal Security Services (PC-S-SEC) Report on the feasibility of recommendations on security services (2003). Committee on Crime Problems (CDPC), 52nd Plenary Session (16- 20 June 2003): CDPC (2003) 09, Addendum IV. The report can be downloaded from: http://www.coe.int/T/E/Legal_Affairs/Legal_co- operation/Police_and_internal_security/. • In joint co-operation with the Association for the Prevention of Torture and the Geneva Police. A visit by the CPT: what’s it all about? Download from: http://portal.coe.ge/downloads/A%20visit%20by%20th e%20CPT%20(E).pdf. Appendix B: Bibliography 299 Crawshaw, Ralph, Barry Devlin and Tom Williamson (Eds.), Human rights and policing. Standards for good behaviour and a strategy for change, Kluwer Law International, The Hague, Netherlands, 1998. Crow, M.S., T. O’Connor Shelley, L. E. Bedard, M.Gertz, “Czech police ofﬁcers. An exploratory study of police attitudes in an emerging democracy”, Policing: An International Journal of Police Strategies & Management, vol. 27 no 4, 2004, pp 592-614. Das, Dilip K., “Challenges of policing democracies: a world perspective”, Policing: An International Journal of Police Strategies & Management, vol. 20, no.4, 1997, pp.609-630. Davis, R.C. e.a., “A cross-national comparison of citizen perceptions of the police in New York City and St. Petersburg, Russia” Policing: An International Journal of Police Strategies & Management, vol. 27, no.1, 2004, pp. 22-36. Demos Center for Information and Research on Public Interest Issues, Reforming law enforcement: overcoming arbitrary work practices, 2005, Moscow. Download from: www.demos-center.ru. Eijkman, Q., Around here I am the law! Strengthening police ofﬁcer’s compliance with the rule of law in Costa Rica. Paper prepared for the conference ‘Police and human rights strategies’, University of Utrecht, 7-8 April 2006. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT): • 12th General Report on the CPT’s activities (2002). • The CPT standards. “Substantive” sections of the CPT’s General Reports (2004). PT/Inf/E (2002) 1 - Rev. 2004. Download from: http://www.cpt.coe.int/en/docsannual.htm. European Platform on Police and Human Rights • Police ofﬁcers have rights too (also available in Russian) • Police and NGOs. Why and how human rights NGOs and police services can and should work together Download from: http://www.grootaarts.nl/epphr Ferret, Jerome, ´The State, policing and old continental Europe: managing the local/national tension”, Policing & Society, vol. 14, No.1, March 2004, pp.49-65. Giffard, C., The torture reporting handbook. How to document and respond to allegations of torture within the international system for the protection of human rights, Human Rights Centre, University of Essex, 2000. Global Facilitation Network for Security Sector Reform (GFN-SSR), Compendium of good practices on security sector reform, 2005. 300 Understanding Policing Download from: http://www.ssronline.org/good_practice.cfm. Goldsmith, A., “Policing weak states: citizen safety and state responsibility”, Policing and Society, vol. 13, no.1, 2003, pp.3-21. Hale, C.M.S, P.Uglow, & R.Heaton, “Uniform Styles II: Police families and police styles”, Policing and Society, vol.15, no.1, March 2005, pp 1-18. Hartwig, M., P.Anders and A.Vrij, “Police interrogation from a social psychology perspective”, Policing & Society, vol. 15, no.4, dec. 2005, pp. 379- 399. Human Rights Watch, Brieﬁng Paper for the Independent Commission on Policing for Northern Ireland: Recommendations for Vetting the Police Force in Northern Ireland, January, 1999. Independent commission on policing for Northern Ireland, A new beginning: policing in Northern Ireland. The report of the independent commission on policing for Northern Ireland, 1999. Download from: http://www.belfast.org. uk/report.htm. Inter-American Commission on Human Rights • Civil Society Organizations and the Inter-American System for the Protection of Human Rights Face Citizen Security Challenges in the Americas. Document prepared for the hearing on Citizen Security and Human Rights At the Inter-American Commission on Human Rights, presented on October 14, 2005, issued by a conglomeration of human rights NGO’s. • CIDH, Informe “Justicia e Inclusión Social: Los desafíos de la democracia en Guatemala”, OEA/Ser.L/V/II.118 / Doc. 5 rev. 1, 29 diciembre 2003. Capítulo II: La Seguridad Ciudadana • Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/ II.100, Doc. 7 rev. 1, 24 September 1998. International Centre for Transitional Justice (ICTJ, in collaboration with UNDP), Vetting and institutional reform in countries in transition: an operational framework, 17 Dec. 2004. International Council on Human Rights Policy, Taking duties seriously: Individual duties in international human rights law - A commentary, 1999. Download from: www.ichrp.org. Kleinfeld Belton, Rachel, Competing deﬁnitions of the rule of law, Carnegie Endowment for International Peace, 2005. Download from: www. carnegieendowment.org. Lewis, W. and E. Marks, Civilian police and multinational Peacekeeping – A workshop series. A role for democratic policing. US Department of Justice, Appendix B: Bibliography 301 National Institute of Justice – Research Forum, 1997. Download from: http:// www.ncjrs.org/pdfﬁles/172842.pdf. Marenin, O. (Ed.), Policing change, changing the police. International perspectives, NY & London: Garland Publishing Inc., 1996. Marsden, Chris and Jörg Andriof, “Towards an understanding of corporate citizenship and how to inﬂuence it”. Download from: http://users.wbs. warwick.ac.uk/cms_attachment_handler.cfm?f=29e0bb30-4460-4535-af1a- e0ac94c38c97&t=towards_an_understanding.pdf. Ministerie van Binnenlandse Zaken en Koninkrijksrelaties, Kerngegevens Nederlandse Politie 2005. April 2006. Download from: www.politie.nl. Mistry, Duxita and Melanie Lue-Dugmore, An overview of the independent complaints directorate (ICD) in the light of proposals to restructure the directorate, Institute for Security Studies, 25 April 2006. Download from: http:// www.policeaccountability.co.za/Publications/. Neild, Rachel, “The new face of impunity”, Human Rights Dialogue: “Public Security and Human Rights”. Series 2, No.8, Fall 2002. Download from: http:// www.cceia.org/viewMedia.php/prmTemplateID/8/prmID/799. Oakley, Robin, Police training concerning migrants and ethnic relations. Practical guidelines. Published by the Council of Europe in 1994, reprinted in 1998. Open Society Justice Initiative, Justice Initiatives (on proﬁling), June 2005. Download from: www.justiceinitiative.org. O’Rawe, Mary & Linda Moore, Human rights on duty. Principles for better policing. Committee on the Administration of Justice (CAJ), 1997. Penal Reform International, Access to justice in sub-Saharan Africa; the role of traditional and informal justice systems, Astron Printers, London, UK , January, 2001. Police Executive Research Forum (PERF), Community Policing, the past, present and future, 2004. Download from: www.policeforum.org. PolicyLink, Organized for change, an activist’s guide for police reform, 2004. Download from: http://www.policylink.org/Research/PoliceAdvocacy/. Punch, Maurice, “Rotten Orchards: `Pestilence`, Police Misconduct and System Failure”, Policing and Society, 13(2), 2003, pp. 171-196. Reenen, Piet van, “Police integrity and police loyalty: The Stalker dilemma”, Policing and Society, vol. 8, 1997, pp. 1-45. 302 Understanding Policing Reicher, S., C. Stott, P. Cronin, O. Adang, “An integrated approach to crowd psychology and public order policing”, Policing: An International Journal of Police Strategies and Management, vol.27 No 4, 2004. Roach, Kent, Four models of police-government relationships, July 2004. Download from: http://www.ipperwashinquiry.ca/policy_part/research/index. html. Rover, Cees de, To serve and to protect, International Committee of the Red Cross, 1998. Sandfort, T. and I. Vanwesenbeeck, Omgangsvormen, werkbeleving en diversiteit bij de Nederlandse politie. NISSO studies Nieuwe reeks 23. Delf Eburon, 2000. Smith, B.W., “Structural and organizational predictors of homicide by police”, Policing, An International Journal of Police Strategies and Management, vol. 27, no.4, 2004, p.539-557. Stenning, Philip, The idea of the political independence of the police: international interpretations and experiences, 2004. Download from: http://www.ipperwashinquiry.ca/policy_part/research/index.html. Stenning, as quoted in: Bruce, D. and R. Neild, The police that we want: a handbook for oversight of police in South Africa, Centre for the Study of Violence and Reconciliation, 2004. Download from: http://www.justiceinitiative.org/db/resource2?res_id=102519. Stone, C. and H.H. Ward, “Democratic policing; a framework for action”, Policing and Society, vol. 10, 2000, pp. 11-45. Stone, C. and J. Miller, M. Thornton and J. Trone, Supporting security, justice and development: lessons for a new era, 2005. Download from: http://www.vera.org/. Uildriks, Niels & Piet van Reenen, Policing post-communist societies. Police- public violence, democratic policing and human rights, Intersentia, Antwerp- Oxford-New York, 2003. United Nations • A more secure world: our shared responsibility. Report of the Secretary-Generals’ High-Level Panel on Threats, Challenges and Changes, 2004, UN General Assembly Resolution A59/565. Download from: www.un.org/secureworld/. • The rule of law and transitional justice in conﬂict and post- conﬂict societies, Report of the Secretary-General, 2004, UN Doc: S/2004/616. Download from: http://pbpu.unlb.org/pbpu/library/ Sgs%20Report%20new.pdf. Appendix B: Bibliography 303 • Strengthening the rule of law. Report of the Secretary-General, 2002, UN Doc: A/57/275, 5 August 2002. • Outcomes World Summit 2005. UN General Assembly Resolution A/ RES/60/1. • In larger freedom: towards development, security and human rights for all. Report of the Secretary General, 2005, UN Doc: A/59/2005. Available at: http://www.un.org/largerfreedom/. • Report of the panel on United Nations peace operations (the ‘Brahimi report’). UN Doc: A/55/305, S/2000/809. Download from: http://www.un.org/peace/reports/peace_operations/. • ‘Milan Plan Of Action’, UN General Assembly Resolution A/RES/40/32. OHCHR: • Digest of Jurisprudence of the UN and regional organizations, on the protection of HR while countering terrorism (2003) (HR/PUB/03/1). Download from: www.ohchr.org (under Publications, Special Issue Papers). • Human Rights and Law Enforcement: A Manual on Human Rights Training for the Police (1997). Available in full text on www.ohchr.org. • Istanbul Protocol, Manual for the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Submitted to the UN High Commissioner of Human rights, 9 aug. 1999. Download from: www.ohchr.org. Varenik, Robert, Exploring roads to police reform: six recommendations, Lawyers Committee for Human Rights (now called: Human Rights First), 2003/04. Download from: http://repositories.cdlib.org/cgi/viewcontent.cgi?artic le=1027&context=usmex. Vera Institute of Justice, Measuring progress toward safety and justice: A global guide to the design of performance indicators across the justice sector, 2003. Download from: www.vera.org. Washington Ofﬁce on Latin America (WOLA), Themes and debates in public security reform. A manual for public society. Download from: http://www.wola. org/security/public_security_civil_society_themesdebates_description.htm. Wing-Hung Lo, C. and A. Chun-Yin Cheuk, “Community policing in Hong-Kong. Development, performance and constraints”, Policing: An International Journal of Police Strategies & Management, vol. 27, no.1, 2004, pp.97-127. Newspapers: The New York Times, July 31, 2005. Switched Off in Basra. By Steven Vincent. Appendix C: Amnesty International reports 305 Appendix C: Amnesty International reports Please note that most of these are available through the website www.amnesty.org. General and thematic reports, listed in alphabetical order • 10 Basic Human Rights Standards for Law Enforcement Ofﬁcials (1998). AI Index: POL 30/004/1998. • A 12-Point Guide for Good Practice in the Training and Education for Human Rights of Government Ofﬁcials (1998). AI Index: ACT 30/001/1998. • Amnesty International’s Campaigning Manual (2001). AI Index: ACT 10/002/2001. • Amnesty International’s recommendations on national human rights institutions (2001). AI Index: IOR 40/007/2001. • Amnesty International report 2005. AI Index: POL 10/001/2005. • Combating torture. A manual for action (2003). AI Index: ACT 40/001/2003. • Fair Trials Manual (1998). AI Index: POL 30/002/1998. • Guns and policing. Standards to prevent misuse (2004). AI Index: ACT 30/001/2004. • Human rights for human dignity. A primer on economic, social and cultural rights (2005). AI Index POL 34/009/2005. • Involving the Military and Police in Human Rights Work: Suggested Guidelines. AI index: AI Index: POL 34/01/87. Please note that this is an internal organizational document not available to non- members. • Making rights a reality: The duty of states to address violence against women (2004). AI Index: ACT 77/049/2004. • Policing to protect human rights: A survey of police practices in countries of the Southern African Development Community, 1997-2002 (2002). AI Index: AFR 03/004/2002. 306 Understanding Policing • Rights at risk: Amnesty International's concerns regarding security legislation and law enforcement measures (2002). AI Index: ACT 30/001/2002. • Shattered Lives. The case for tough international arms control (2003). AI Index: ACT 30/001/2003. • The pain merchants. Security equipment and its use in torture and other ill-treatment (2003). AI Index: ACT 40/008/2003. • Towards Legal Accountability (2004). AI Index: IOR 42/002/2004. • Trading in terror: Military, police and security transfers (2001). AI Index : POL 34/011/2001. • Involving the Military and Police in Human Rights Work: Suggested Guidelines (1987). AI Index: POL 34/01/87. Please note that this is an internal organizational document not available to non-members. Country reports, listed alphabetically by country name Afghanistan: Police reconstruction essential for the protection of human rights. AI Index: ASA 11/003/2003. Afghanistan: ‘No one listens to us and no one treats us a human beings’: Justice denied to women. AI Index: ASA 11/023/2003. Brazil: “They come in shooting”: Policing socially excluded communities. AI Index: AMR 19/025/2005. Canada: Amnesty International calls for public enquiry into alleged police brutality. AI Index: AMR 20/003/2001. Democratic Republic of Timor Leste: A new police service – a new beginning. AI Index: ASA 57/002/2003. Guatemala: Suspension of evictions and genuine agrarian policies are the keys to solving land conﬂicts. AI Index: AMR 34/037/2005. Israel and the occupied territories: Administrative detention: Despair, uncertainty and lack of due process. AI Index: MDE 15/003/1997. Israel and the occupied territories: Mass detention in cruel, inhuman and degrading conditions. AI Index: MDE 15/074/2002. Kenya: Medical Action: The role of medical evidence in prosecuting cases of sexual assault. AI Index: AFR 32/005/2002. Appendix C: Amnesty International reports 307 Malaysia: Towards human rights-based policing. AI index: ASA 28/001/2005. Mozambique: Suspected extrajudicial executions: Tomás Paulo José Nhacumba and Gildo Joaquim Bata. AI Index: AFR 41/002/2000. South Africa: The criminal justice system and the prosecution of human rights: the role of the prosecution service. AI Index: AFR 53/001/1998. United Kingdom: Full circumstances into fatal shooting must be investigated. AI Index: EUR 45/027/2005. United Kingdom: AI’s brieﬁng on the draft Terrorism Bill 2005. AI Index: EUR 45/038/2005. United Kingdom: Human Rights: A broken promise. AI Index: EUR 45/004/2006. United Kingdom: The Killing of Jean Charles de Menezes: let justice take its course. AI index: EUR 45/021/2006. USA: Amnesty International’s concerns on police abuse in Prince George’s County, Maryland. AI Index: AMR 51/126/2002. USA: Excessive and lethal force? Amnesty International’s concerns about deaths and ill-treatment involving police use of tasers. AI Index: AMR 51/139/2004. USA: Amnesty International’s continuing concerns about taser use. AI Index: AMR 51/030/2006. News: Amnesty International News service 221/ 2005. Israel/Occupied Territories: Administrative detention cannot replace proper administration of justice. AI Index: NWS 11/221/2005. International Council of Amnesty International (ICM) decisions and related papers Please note that these are internal organizational documents not available to non-members SCRA review on AI’s Engagement Work with Law Enforcement Ofﬁcials adopted by the 2003 ICM (Circular 22). AI Index: POL 34/003/2003. (The Standing Committee on Research and Action (SCRA), an IEC committee, was established in 2001 and disestablished in 2005). Decision 20, 26th ICM, Circular 50, Decisions taken at the ICM. AI Index ORG 52/003/2003. 308 Understanding Policing 27th ICM, Circular 57, decisions of the 2005 ICM, AI Index: ORG 52/002/2005. Amnesty International – Netherlands section Police and Human Rights Program These documents are available through the Police and Human Rights Program, please contact amnesty@amnesty.nl. Police and Human Rights Program. Compilation of six experiences (2001). Police and Human Rights Program. Lessons learnt (2003). Amnesty Internationals recommendations on policing; A review and guide (2004). Index: AINL 684.8(2). Amnesty International – USA section These documents can be downloaded from www.amnestyusa.org. Threat and humiliation, racial proﬁling, domestic security and human rights in the United States (2004). Stonewalled. Police abuse and misconduct against Lesbian, Gay, Bisexual and Transsexual people in the U.S. (2005). Amnesty International –Swiss section Polizei, Justiz und Menschenrechte. Polizeipraxis und Menschenrechte in der Schweiz (2007). Appendix D: Human rights treaties and standards 309 Appendix D: Human rights treaties and standards United Nations All of these are available through the website www.ohchr.org. Basic Principles on the Use of Force and Firearms (Basic Principles) Body of principles for the protection of all persons under any form of detention or imprisonment (Body of principles) Code of Conduct for Law Enforcement Ofﬁcials (UN Code of Conduct) • Resolution adopting the code: Resolution 34/169 adopted by the General Assembly, 17 December 1979 • Guidelines for the Effective Implementation of the Code of Conduct for Law Enforcement Ofﬁcials. Resolution 1989/61 adopted by the Economic and Social Council, 24 May 1989 and endorsed by the General Assembly in its Resolution 44/162 of 16 December 1989 Code of Conduct for Public Ofﬁcials Resolution A/RES/51/59, accepted by the General Assembly on 12 December, 1996 Convention against torture and other cruel, inhuman or degrading treatment or punishment (CAT) • Optional Protocol (OPCAT) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Convention on the Rights of the Child (CRC) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Declaration on the Protection of All Persons from Enforced Disappearance Geneva Conventions • III Relative to the Treatment of Prisoners of War • lV Relative to the Protection of Civilian Persons in Time of War • Geneva Protocol l & II Additional to the Geneva Conventions Guidelines on the Role of Prosecutors 310 Understanding Policing International Convention on the Elimination of Al Forms of Racial Discrimination (ICERD) International Covenant on Civil and Political Rights (ICCPR) International Convention for the Protection of All Persons from Enforced Disappearance International Covenant on Economic, Social and Cultural Rights (ICESCR) ‘Milan Plan of Action’ (of the 7th UN Congress on the Prevention of Crime and the Treatment of Offenders. Adopted by the General Assembly A/RES/40/32, 29 Nov. 1985). Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions. Resolution 1989/65 adopted by the Economic and Social Council, 24 May 1989. Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules) Universal Declaration on Human Rights (UDHR) General Comments General Comments are authoritative, though non-binding, interpretations of and general recommendations to the standards as set out in the international human rights treaties. The General Comments referred to in the Resource Book are mostly given by the Human Rights Committee but also by the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture and the Committee on the Rights of the Child. The General Comments referred to in this Resource Book can be found in the Compilation of General Comments and general Recommendations Adopted by Human Rights Treaty Bodies (HRI/GEN/1/ Rev.8, 8 May, 2006). Download from: www.ohchr.org/english/bodies/icm-mc/ documents.htm. Council of Europe The European Code of Police Ethics. Recommendation rec(2001)10 and explanatory memorandum. Adopted by the Committee of Ministers of the Council of Europe on 19 September 2001. Download from: http://www.coe.int/T/E/Human_Rights/Police/9._Network_ Conference/07_codepoliceethics.pdf Appendix E: Glossary 311 Appendix E: Glossary Accountability A simple deﬁnition of “accountability” is: “having to explain one’s actions or conduct.” It entails a set of normative prescriptions about who should be required to give account, to whom, when, how and about what. Accountability is closely related to liability. It means relating an act (or the omission of an act) to a person or institution. It implies a requirement to remedy misconduct. Accountability and transparency go hand in hand. For accountability to be effective a balanced system is needed involving the following actors and institutions: Internal To the State • Executive • Legislature (democratic) • Judiciary (legal) Public Independent (International) Accusatorial (common law) Under the accusatorial common law system, also called adversarial system, both parties (defence and prosecution) have the same standing at trial and during trial are considered as equal parties in search of the (‘subjective’) truth. The judge, sometimes assisted by a jury, is there to mediate and safeguard the judicial process – as an impartial referee between parties. The purpose of the investigation for the prosecutor is to obtain information that will convince the judge or jury that sufﬁcient proof exists to prosecute and convict the accused. Adversarial See: ‘accusatorial’. Amparo See: ‘habeus corpus’. ‘Blue wall of silence’ A metaphor that is often used to describe an important aspect of police culture, which values loyalty over integrity. Police are supposed never to betray their colleagues, meaning they should never disclose any information about misconduct to others, especially not to the outside world. Code of Conduct These usually include human rights principles such as the prohibition of torture and usually contain a provision that ofﬁcers should not obey orders that are clearly illegal. Some Codes of Conduct are extremely speciﬁc while others are very general. Human rights oriented policing requires States to disclose their rules and regulations governing police behaviour. Moreover, these Codes should be legally binding; either as part of the Police Act or in separate laws. Codes of Conduct are sometimes called Codes of (Police) Ethics (see below). 312 Understanding Policing Code of Ethics Codes of Ethics often include matters not directly relevant to human rights, such as police dress, timekeeping, not smoking etc. They are often believed to help police improve their professional ethos and pride. As such they are usually not statutory. However, sometimes a Code of Ethics refers to a Code of Conduct (see above). Discretion While on duty, a police ofﬁcer typically has great discretionary power and can decide individually on which deviant behaviour to act on or not – obviously limited by such margins as laid down in national law and policy – as not every offence is worthy of police action nor is police action always the best solution for a problem. Disciplinary codes These usually establish: • Norms to which ofﬁcers should comply • Forms of reward for good work and behaviour and sanctions for infractions of the disciplinary code • Procedures for reporting breaches of the disciplinary code or the law • What ofﬁcer may order a disciplinary procedure • Various panels and investigative mechanisms that are established to hear complaints • The rights of police facing disciplinary procedures, including the right to appeal Due diligence States bear legal responsibility for respecting and implementing human rights standards within their territories and in territories where they have effective control and jurisdiction. This includes the obligation to prevent peoples’ rights being violated or abused by State ofﬁcials or others and to promote the full enjoyment of human rights. If private citizens threaten to abuse those rights, certainly the right to life and security of the person, a State is, under international law, obliged to prevent such from happening. If the abuse has taken place a State is, under international law, obliged to investigate and prosecute in accordance with international human rights standards. This principle is the basis of the legal concept of due diligence. Engagement Engagement implies a search for commonalities rather than differences, requiring active and sincere efforts to deﬁne a mutual agenda. Engagement has not been clearly deﬁned within Amnesty International. The 2003 ICM stated that the preferred approach to the police is one of levels and types of engagement with different police institutions and actors, covering a broad range of activities, suggesting two-way dialogue, and also capturing the necessity of “risk- assessment” and maintaining the ability to denounce human rights violations which is key to Amnesty International’s credibility. Executive Usually refers to the executive branch of the State system. Police are part of the executive. For police the term is also used to distinguish police ofﬁcers (‘executive ofﬁcers’) from civilian, typically non-uniformed, police personnel. Forensic information Covers photographs, ﬁngerprints, ear prints, DNA, traces/imprints of devices Appendix E: Glossary 313 used for a particular crime, IT-techniques, chemical analyses, ﬁre investigation etc, in fact any kind of ‘physical’ information about the actual offence not taken from suspect or witness interviews. Police ofﬁcers with special technical training usually carry out basic forensic investigations (ﬁngerprints, traces etc.). The collection of this kind of information is often restricted to the scene of crime but this need not be. General Comments General comments are authoritative, though non-binding, interpretations of and general recommendations to the standards as set out in the international human rights treaties. The General comments referred to in the Resource Book are mostly given by the Human Rights Committee but also by the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture and the Committee on the Rights of the Child. Habeus corpus Meaning the arrested/detained person is entitled to take proceedings before a court, in order that the court may decide on the lawfulness of the arrest and/or detention (also referred to as Amparo). This principle is laid down in Principle 32 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Inquisitorial (civil law) Under the inquisitorial civil law system police and prosecution as well as judges are considered as neutral and objective ‘servants of the law’ working to ﬁnd the objective truth. The pre-trial judge or investigating magistrate, assisted by the prosecutor, is primarily responsible for the criminal investigation, actively involved in determining the facts of the case, whereas one or more judges are in charge of the trial. The system is focused on the accused. Internal disturbances Situations in which there is no non-international armed conﬂict as such, but there exists a confrontation within the country, which is characterised by a certain seriousness or duration and which involves acts of violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organised groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order. The high number of victims has made necessary the application of a minimum of humanitarian rules (deﬁnition by ICRC). Internal tensions Usually encompass: • Situations of serious tension (political, religious, racial, social, economic etc.) • Sequels of an armed conﬂict or internal disturbance Law Enforcement Ofﬁcials The term “Law enforcement ofﬁcials” includes all ofﬁcers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest and detention. In countries where police powers are exercised by military 314 Understanding Policing authorities, whether uniformed or not, or by State security forces, the deﬁnition of law enforcement ofﬁcials shall be regarded as including ofﬁcers of such services (deﬁnition from UN Code of Conduct for Law enforcement ofﬁcials). National human rights NHRIs are established to promote and protect human rights, through effective institutions investigation of broad human rights concerns and individuals’ complaints about human rights violations they have suffered, and through making recommendations accordingly. Such NHRIs can be distinguished from non- governmental human rights organizations by their very establishment as a quasi-governmental agency occupying a unique place between the judicial and executive functions of the state, and where these exist, the elected representatives of the people. The so-called ‘Paris Principles’ lay down the principles that guide the status and functioning of National Human Rights Institutions. NHRIs are also known as Ombudsperson or Ombudsman. Ombudsman See ‘National Human Rights Institutions’. Open- and closed Techniques not requiring the use of equipment such as a truncheon or hand techniques handcuffs. Open hand techniques include for example police pushing someone aside with the palm of the hand, literally with ‘open hands’; closed hand techniques are when a police ofﬁcers uses his or her ﬁsts (‘closed hand’) for example in a ﬁght. Hard empty hand techniques involve all sorts of techniques, including karate and judo techniques as well as holding someone’s arm behind their back. Operational independence To ensure (political) impartiality and neutrality, and thus non-arbitrary lawful professional decision-making by the police – in other words to be able to operate in the public interest – police leadership must be authorised to decide, within the established budgetary and legal framework, how they allocate resources and how they respond to law and order situations. This is known as operational independence. The European Code of Police Ethics states that operational independence should apply throughout the organization. In exercising their powers, the police should not receive any instructions of a political nature. Operational independence is an important feature of the rule of law, as it is aimed at guaranteeing that police operations are being conducted in accordance with the law, and when interpretation of the law is needed, this is done in an impartial and professional way. Operational independence requires that the police are fully accountable for their actions/omissions. Order A state of peaceful harmony under a constituted authority. Maintaining public order is one of the core police functions. Oversight Oversight has to do with continuous accountability, before, during as well as after police operations have taken place. Oversight can be direct, or rather at a distance, can be based on samples or can (in theory) include every police action and can be independent or internal. Appendix E: Glossary 315 Places of detention shall be visited regularly by qualiﬁed and experienced persons appointed by, and responsible to, a competent authority independent of the authorities in charge of the administration of the place of detention. The detainee is entitled to communicate freely and conﬁdentially with these visitors (Standard Minimum Rules, Rule 55; Body of Principles, Principle 29). Police State ofﬁcials entrusted with the powers to use force and to arrest and detain, tasked to: • maintain and restore order • prevent and detect crime • provide assistance to the public Police agencies Organizational structure of the police. Sometimes referred to as ‘police forces’ or ‘police services’. Police functions It is generally accepted that the functions of police encompass: • prevention and detection of crime • maintenance of public order • provision of assistance to the public Policing What the police do (to ensure compliance with the law). Policing by consent The maintenance of order and provision of security are core functions and responsibilities of the State. However, the police and the public are interdependent in the maintenance of order and provision of security. ‘Policing by consent’ means there is public acceptance of the police agency carrying out police functions (most notably enforcing the law), and using police powers. Members of the public are in principle willing to comply with national laws, behave in an orderly manner and accept police intervention (or other corrective measures) if acting otherwise. If the public does not accept police authority – if they do not defer to it – police cannot perform their functions other than by reliance on force. The police on the other hand agree to comply with the laws under which they operate and perform their functions with due diligence. This is sometimes referred to as the ‘social contract’: a concept introduced by the French philosopher Rousseau that involves an agreement by the people to delegate certain responsibilities to the State. Professional Police Group Police ofﬁcers who are also members of Amnesty International who organize themselves in a group to support the organization’s objectives. Proﬁling (ethnic, racial) The targeting of individuals and groups by law enforcement ofﬁcials, even partially, on the basis of race, ethnicity, national origin, or religion, except where there is trustworthy information, relevant to the locality and timeframe, that links persons belonging to one of the aforementioned groups to an identiﬁed criminal incident or scheme (deﬁnition by AI-USA). Rule of law The principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly 316 Understanding Policing promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and legal transparency (deﬁnition by the UN). Scene of crime The actual location where the crime was committed or where evidence is to be gathered. As such, there may be more than one scene of crime for one crime (e.g. someone might be murdered at home but the body removed to another place). The scene of crime is vital for collecting evidence, as it is here that shoeprints, ﬁngerprints, DNA material such as hair etc, can be found that may give clues as to what happened and who was present. As such it is of utmost importance that the scene of crime is secured while police are carrying out their investigation. Standard Operational This and other terms, such as ‘instructions’, ‘regulations’, ‘operational codes’, Procedure or ‘rules’, are in used in different countries to describe procedures for carrying out police functions especially when police powers are involved such as arrest and use of force. Standard operational procedures are usually drafted by staff of relevant Ministries but may also be developed from the bottom up and be subsequently authorised by a Ministry – once proven effective in practice. SOP’s should be based on national law, international human rights standards, national Codes of Conduct and general concepts of police practice. For example, national laws may allow property searches to be made without a search warrant if there is a danger of evidence being lost through any delay. SOPs should provide precise guidance on the conditions under which such a search may be made and the required reporting procedures. SOPs are not usually in the form of law. Subsidiarity Police should try to employ the least intrusive methods (investigative methods, use of force methods) possible in the circumstances. Traditional justice Traditional justice systems, as opposed to State justice arrangements, sometimes support local communities in the maintenance of order and the resolution of conﬂicts. Very often traditional justice encompasses some kind of a court function where individuals (either elected or leaders through inheritance) solve conﬂicts and problems that may threaten the peaceful harmony of the community. This may concern marital disputes, thefts, violence etc. Traditional justice systems often combine both penal and civil law functions. For some countries the establishment of a formal judicial system in line with international human rights standards that is accessible to all may seem impossible to achieve. In those countries, where ofﬁcial agencies may be located hundreds of miles away, requiring days of travel to register a criminal act, traditional systems can ﬁll the gap and address impunity. However, it should be noted that traditional systems can include aspects that themselves violate human rights; for example many are discriminatory towards women, children and juveniles. Appendix F: Acronyms 317 Appendix F: Acronyms ACPO Association of Chief Police Ofﬁcers AI Amnesty International AINL Amnesty International - Netherlands CAJ Committee on the Administration of Justice CAT Convention Against Torture and other cruel, inhuman or degrading treatment or punishment CEDAW Committee on the Elimination of Discrimination Against Women CHRI Commonwealth Human Rights Initiative CPT Committee for the Prevention of Torture EPCTF European Police Chiefs Task Force ESC rights Economic, Social and Cultural Rights GA General Assembly (of the UN) GFN-SSR Global Facilitation Network for Security Sector Reform HR Human Rights HRC Human Rights Committee HRE Human Rights Education HRW Human Rights Watch IACP International Association of Chiefs of Police ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICHRP International Council on Human Rights Policy ICM International Council of Amnesty International (AI- terminology) ICP International Committee on Policy (formerly: SCRA) (AI- terminology) IEC International Executive Committee (AI-terminology) IGO International Governmental Organization INGO International Non-Governmental Organization IS International Secretariat (AI-terminology) LEO Law Enforcement Ofﬁcial LGBT Lesbian, Gay, Bisexual and Transsexual people MSP Military, Security and Police (AI-terminology) NGO Non-Governmental Organization NHRI National Human Rights Institution OHCHR Ofﬁce of the High Commissioner for Human Rights OPCAT Optional Protocol to CAT PERF Police Executive Research Forum PLAN Proportionality, Lawfulness, Accountability, Necessity SAPS South African Police Service SARPCCO Southern African Regional Police Chiefs Co-operation 318 Understanding Policing Organization SCRA Standing Committee on Research and Action. This term is no longer used. Now: ICP – International Committee on Policy (AI-terminology) SOP Standard Operational Procedure SG Secretary-General UDHR Universal Declaration on Human Rights UK United Kingdom UN United Nations UNDP United Nations Development Program US United States (of America) VAW Violence Against Women WOLA Washington Ofﬁce on Latin America WOOC Work On Own Country (AI-terminology) Appendix G: Relevant websites 319 Appendix G: Relevant websites NGOs and academic sites www.altus.org Altus, a coalition of 6 NGOs (including the Vera Institute, see below) www.apt.ch Association for the Prevention of Torture www.cinat.org Coalition of International NGOs Against Torture www.caj.org.uk Committee o the Administration of Justice www.humanrightsinitiative.org Commonwealth Human Rights Initiative www.hrw.org Human Rights Watch www.icrc.org International Committee of the Red Cross www.ichrp.org International Council on Human Rights Policy www.justiceinitiative.org Open Society Justice Initiative www.cacole.ca Canadian Association for Civilian Oversight of Law Enforcement www.newtactics.org New Tactics in Human Rights www.nhri.net National Human Rights Institutions Forum www.parc.info Police Assessment Resource Center www.penalreform.org Penal Reform International www.policeaccountability.co.za On police accountability and oversight in 16 African countries www.policeaccountability.org Police Accountability Resource site, University of Nebraska www.saferworld.org.uk Saferworld; a.o. on engagement with police and community based policing www.ssronline.org Security Sector Reform, Cranﬁeld University UK www.vera.org Vera Institute of Justice www.wola.org Washington Ofﬁce on Latin America (WOLA) Council of Europe sites www.coe.int Council of Europe, homepage www.coe.int/T/E/Human_Rights/ Police/ Human rights, Police and Human Rights Program www.coe.int/T/E/Legal_affairs/ Legal_co-operation/ Legal Affairs, Legal Cooperation www.grootaarts.nl/epphr European Platform on Police and Human Rights (the Platform is not part of the Council of Europe but works to support the Council of Europe’s Police and Human Rights Program) Professional/government sites Please note that we have included these websites primarily as a means of ﬁnding additional background information. We cannot make any general statements about the reliability or the usefulness of their contents www.acpo.police.uk Association of Chief Police Ofﬁcers (UK) www.theiacp.org International Association of Chiefs of Police www.sepca-bg-org Southeast Europe Police Chiefs Association 320 Understanding Policing www.enp.nl European Network of Policewomen www.iawp.org International Association of Women Police www.cmc.qld.gov.au Crime and Misconduct Commission, Queensland, Australia (targeting the entire public sector and speciﬁcally overseeing the police) www.ncjrs.org Documentation Center of the Ministry of Justice, USA (many full-text documents available) www.cops.usdoj.gov Community Policing Promotion and Resource site, US Dept of Justice The Southern African Regional Police Chief Council Organisation (SARPCCO) and the European Police Chiefs task force (EPCtf) do not have their own websites Appendix H: International law applicable to disturbances, tensions and armed conﬂicts 321 Appendix H: International law applicable to disturbances, tensions and armed conﬂicts 1 ) Crawshaw, R., e.a., 1998, When armed conﬂict (international or non-international) breaks out, Human rights and policing. international humanitarian law, or the law of war, becomes applicable. Standards for good behaviour and a strategy for change. The purposes of this branch of law are to regulate the conduct of hostilities 2 ) A draft ‘Code of conduct and to protect victims of armed conﬂict. It is expressed for example in the four in the event of internal Geneva Conventions of 1949, and their additional Protocols of 1977.1 disturbances and tensions’ The great majority of the provisions of these treaties concern international and a draft ‘Declaration of minimum humanitarian armed conﬂict or wars between States. Article 3, common to all of the 1949 standards’ can be obtained Geneva Conventions (Common Article 3) seeks to protect victims of non- from the ICRC. Both texts aim international armed conﬂicts, as does Additional Protocol II, which extends and to re-emphasize existing norms develops the protection offered by the Common Article. The latter instrument and values. applies to those high intensity non-international armed conﬂicts where dissident armed forces control a part of the territory of the state (Article 1.1), whereas Common Article 3 applies to all forms of non-international armed conﬂict. It is speciﬁcally stated in the Additional Protocol (Article1.2) that the Protocol does not apply to situations of internal disturbances and tensions.2 ‘Categories’ of disorder or conﬂict situations: Internal disturbance and tensions: Human rights law applies. Non-international armed conﬂict: • Low intensity Common Article 3 of the Geneva Conventions applies; human rights law applies. • High intensity Common Article 3 applies; 1977 Additional Protocol II applies; human rights law applies. Measures of derogation may be applied. International armed conﬂict: The full range of international humanitarian law applies; human rights law applies. Measures of derogation may be applied. It should be noted that it is sometimes difﬁcult to establish when the various “thresholds” have been crossed. For example when an internal disturbance has escalated into a non-international armed conﬂict. In day-to-day language the two concepts, disturbances and tensions, are often used together. 322 Understanding Policing The International Committee of the Red Cross (ICRC) has formulated guidelines to deﬁne internal disturbances: “Situations in which there is no non- international armed conﬂict as such, but there exists a confrontation within the country, which is characterised by a certain seriousness or duration and which involved acts of violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organised groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order. The high number of victims has made necessary the application of a minimum of humanitarian rules.”3 Internal tensions usually encompass:4 • Situations of serious tension (political, religious, racial, social, economic etc.) • Sequels of an armed conﬂict or internal disturbance The ICRC has drafted a list of characteristics of internal disturbances and tensions.5 These are: 1. Mass arrests; 2. A large number of persons detained for security reasons; 3. Administrative detention, especially for long periods; 4. Probable ill-treatment, torture or materials or psychological conditions of detention likely to be seriously prejudicial to the physical, mental or moral integrity of detainees; 5. Maintaining detainees incommunicado for long periods; 6. Repressive measures taken against family members or persons having a close relationship with those deprived of their liberty mentioned above; 7. The suspension of fundamental judicial guarantees, either by the proclamation of the state of emergency or by a de facto situation; 8. Large-scale measures restricting personal freedom such as relegation, exile, assigned residence, displacements; 9. Allegations of forced disappearances; 10. Increase in the number of acts of violence (such as sequestration and hostage-taking) which endanger defenceless persons or spread terror among the civilian population. Internal disturbances and tensions can lead to situations of armed conﬂict. As indicated above, in situations of non-international armed conﬂict Common Article 3 to the Geneva Convention applies as does Additional Protocol II. Common Article 3 deﬁnes those it protects as “persons taking no active part in 3 ) As quoted by Rover, C. de, hostilities, including members of armed forces who have laid down their arms 1998, To serve and to protect, and those placed hors de combat by sickness, wounds, detention, or any other p. 204. 4 ) Ibid.. cause. Such people shall in all circumstances be treated humanely, without 5 ) Ibid. any adverse distinction founded on race, colour, religion or faith, sex, birth or Appendix H: International law applicable to disturbances, tensions and armed conﬂicts 323 wealth, or any other similar criteria.” The Article then sets out a number of acts that are prohibited at any time and in any place whatsoever in respect of the people it protects. Prohibited acts include murder, torture, hostage taking, outrages upon personal dignity and the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court. The Article requires the wounded and sick to be collected and cared for, and the ﬁnal provisions include one that allows an impartial body (such as the ICRC) to offer its services to parties to the conﬂict. Additional Protocol II consists of 28 articles and, as indicated above, is more extensive than Common Article 3.6 Article 4 states that all persons who 6 ) The ‘Protocol additional do not take a direct part or who have ceased to take a part in hostilities, to the Geneva Conventions’ whether or not their liberty has been restricted, are entitled to respect for (Additional Protocol II) does their person, honour and convictions and religious practices. They are to be apply to victims of non- treated humanely without any adverse distinction. A number of acts, such as international armed conﬂicts. Its Article 1 states “[the 2nd violence to life, torture, collective punishments and hostage taking are totally Protocol] shall apply to all prohibited. armed conﬂicts which are not covered by article 1 of If a non-international armed conﬂict develops into an international armed the [ﬁrst] Protocol, and which take place in the territory conﬂict all of the Geneva Conventions and Additional Protocol I apply. In the of a High Contracting Party case of an international armed conﬂict the distinction between combatants between its armed forces and and civilians is important. Broadly, members of the armed forces of a party dissident armed forces or other to an international armed conﬂict (other than medical or religious personnel) organized armed groups which, are combatants, and any combatant captured by the adverse party is a under responsible command, exercise such control over a prisoner of war. Such armed forces must be organised, placed under a part of its territory as to enable command responsible to that party for the conduct of its subordinates, and them to carry out sustained subject to an internal disciplinary system that enforces compliance with the and concerted military rules of international law applicable in armed conﬂict. A civilian is any person operations and to implement this Protocol.” Do note that this who does not fall within the category of combatant. Civil police forces are means the Protocol does not not armed forces, which means that civil police forces have civilian status apply to armed conﬂicts not and that members of those forces have civilian and not combatant status. involving State institutions nor Consequently they have all of the protections that other civilians have. does it apply to armed conﬂicts involving armed groups who Whenever a Party to a conﬂict incorporates a paramilitary or armed law do not exercise control over enforcement agency into its armed forces it shall so notify other parties to a certain territory. Article 3 the conﬂict. In such cases police ofﬁcials have combatant status.7 however, does apply to such situations. 7 ) Article 43.3 of 1977 Geneva The 2nd Protocol to the Geneva Conventions also has provisions for those Protocol I. deprived of their liberty for reasons related to the (non-international) armed 8 ) These include the whole conﬂict (Article 5). Furthermore, there are provisions for the protection of of 1949 Geneva Convention people deprived of their liberty during international armed conﬂicts.8 III Relative to the Treatment of Prisoners of War; many provisions of 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War; and provisions of 1977 Geneva Protocol l Additional to the Geneva Conventions. USA Costa Rica Indonesia China Kazakstan Brazil Algeria Uruguay Turkey Niger South Africa Egypt Aruba Iran Australia Vietnam Croatia Russian Federation Netherlands Democratic Republic of Congo

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UNDERSTANDING POLICING A resource for human rights activists

UNDERSTANDING POLICING A resource for human rights activists

UNDERSTANDING POLICING A resource for human rights activists

UNDERSTANDING POLICING A resource for human rights activists

UNDERSTANDING POLICING A resource for human rights activists

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