In response to the recent Khoza judgement in the Pretoria High Court on the use of force by law enforcement officials during the Covid-19 pandemic, the Institute for International and Comparative Law in Africa together with the Centre for Human Rights have made available an overview of the main international legal documents and standards on the use of force.
In Khosa and others v. Ministry of Defence and others, in the context of excessive use of force during the COVID-19 lockdown, the High Court in Pretoria ordered the Minister of Defence and Military Veterans and the National Commissioner of the South African Police Service to publish guidelines on, among other things, the use of force by law enforcement officials.This overview introduces the main international instruments and standards on the topic.
The United Nations (UN) and the African Union (AU) have developed a number of international instruments on the use of force by law enforcement officials (the police as well as the military, to the extent that they perform law enforcement functions) that the Republic of South Africa has adopted as binding.
Of particular importance in the United Nations context are the rights to life and to freedom from torture and other ill-treatment, contained in the 1966 International Covenant on Civil and Political Rights (ICCPR) and the right to freedom from torture and other ill-treatment recognised in the 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). The most relevant African Union instrument is the 1981 African Charter on Human and Peoples’ Rights (ACHPR), which recognises the same rights. These rights are also explicitly protected under the South African Constitution and apply at all times and in all circumstances.
The obligations on all agencies to respect and protect life during law enforcement operations imposed by these treaties have been interpreted in greater depth in a number of other international instruments. The 1979 UN Code of Conduct for Law Enforcement Officials (UN Code of Conduct) and the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Basic Principles) have been recognised for decades as authoritative in setting out the foundational rules on the use of force and firearms by law enforcement officials.
During the last five years, both the UN and the AU have adopted further documents setting out the applicable standards. In the United Nations, the Human Rights Committee adopted in 2018 General Comment No. 36, article 6, right to life (Human Rights Committee General Comment 36) dealing with the ICCPR. Likewise, the African Commission on Human and Peoples’ Rights in 2015 adopted General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4) (African Commission General Comment 3).
The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) (Minnesota Protocol), published by the Office of the UN High Commissioner for Human Rights, provides guidance to States on how to comply with the duty to investigate suspected violations of the rights to life. The 2020 UN Human Rights Guidance on Less-Lethal Weapons in Law Enforcement (UN Less Lethal Weapons Guidance) details under what circumstances weapons that are less hazardous than firearms can be employed in law enforcement operations.