The Code of Conduct for Law Enforcement Officials: Activist Strategies as Compliance Frameworks?
Vol. 42 Executive Editor
Introduction International law, specifically the Code of Conduct for Law Enforcement Officials, prohibits discrimination by law enforcement officials and constrains their use of force. Around the world, there are many examples of police brutality that violates the Code of Conduct; this post focuses on the widespread use of force by law enforcement officials throughout the United States, particularly against Black people, and use of force by the Special Anti-Robbery Squad in Nigeria. When violations of the Code of Conduct occur, the Code proposes reform. However, given the scale and persistence of violations, the reform envisioned by the Code is insufficient to prevent and systemically address violations. Instead, the #DefundthePolice and #EndSARS movements in the United States and in Nigeria may provide frameworks that better match the scale and persistence of violations, and therefore offer paths to greater compliance with the Code of Conduct for Law Enforcement Officials. Code of Conduct for Law Enforcement Officials The United Nations General Assembly adopted the Code of Conduct for Law Enforcement Officials on December 17, 1979. Article 2 of the Code instructs law enforcement officials to respect and uphold human rights and expressly forbids law enforcement officers from discriminating, including on the basis of race. Article 3 addresses use of force by law enforcement officials: “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” According to the commentary that follows Article 3, law enforcement officers should only use force in “exceptional” circumstances, and when force is appropriate it should be proportional. Further, the use of firearms by law enforcement officers “is considered an extreme measure.” So extreme that “[e]very effort should be made to exclude the use of firearms.” The only exception to this directive is when a suspect is armed or jeopardizes the lives of others and “less extreme measures are not sufficient to restrain or apprehend the suspected offender.” Even when international law allows the use of firearms by law enforcement officers, the purpose must be limited to restraining or apprehending a suspect. Although “restrain” and “apprehend” are not defined within the Code of Conduct for Law Enforcement Official, the Code’s emphasis on protecting human life, rights, and dignity is a clear signal that neither “restrain” nor “apprehend” should be read to include kill or permanently impair. Law Enforcement Use of Force In the United States, since January 1, 2015 police officers fatally shot 6,123 people, and “1,004 people have been shot and killed by police in the past year.” Although 58% (3,570) of the total number of people who were fatally shot had a gun with them, 42% (2,553) did not- some were unarmed, others had toy guns, vehicles, or knives as “weapons.” At least 24% (1,461) of the total number of people fatally shot by police were Black. In the United States, Black people are disproportionately killed by the police: “They account for less than 13 percent of the U.S. population, but are killed by police at more than twice the rate of White Americans.” Further, during protests for racial justice in May and June of 2020 (in response to the police killings of Breonna Taylor and George Floyd), police used excessive force against protestors in 125 separate incidents. This force included “beatings, the misuse of tear gas and pepper spray, and the inappropriate and at times indiscriminate firing of ‘less lethal’ projectiles, such as sponge rounds and rubber bullets.” At face value, the number of people fatally shot by police officers and the number of people who were victim to excessive force may not seem high enough to raise concern, after all there are 330 million people in the United States. And, each day there are many more non-lethal encounters with police officers than there are lethal ones. However, the Code of Conduct for Law Enforcement Officials is concerned with the nature of policing and institutionalized norms, not simply the proportion of law enforcement officers who use lethal force compared to those who do not. Like the United States, there has also been a recent international spotlight on Nigeria for its policing practices, specifically those of its Special Anti-Robbery Squad. Nigeria’s Special Anti-Robbery Squad (SARS) was formed in 1992. From the beginning, SARS was a force in which brutality, in the form of excessive force, was not out of the norm. In 1993, SARS picked up and tortured a graduate student in an attempt to get him to “confess” to belonging to a gang. In 1995 SARS shot and killed two other students who did not stop at a checkpoint. In the early 2000s with the rise of cybercrimes, SARS began profiling young men who had dreadlocks or those with expensive clothing; they would detain them and torture them. In a 2012 interview, the Inspector General of Police described SARS as “killer teams engaging in deals for land speculators and debt collection.” When a video was circulated on social media on October 3, 2020 that appeared to show a SARS officer killing a man, unprovoked, Nigerians were fed up. In the fall of 2020, Nigerians organized to demand an end to the Special Anti-Robbery Squad. Like in the U.S., some of the most troubling use of force (including lethal force) by law enforcement occurred at protests that were organized to try to dismantle systems of inequality and police brutality. During Nigeria’s 2020 #EndSARS protests “at least 56 people were killed by excessive use of force used by the army and police.” Thirty eight of those people were killed on a single day, October 20, 2020; that night law enforcement officers “without warning, opened fire on thousands of people who were peacefully calling for good governance and an end to police violence as part of the #EndSARS movement.” Throughout October 2020, protestors were “fired at with live ammunition, beaten, and arrested,” an aggressive, and sometimes deadly, response used by law enforcement to disperse crowds. How is that the Code of Conduct for Law Enforcement Officials is, at least in some instances, ignored? The Code of Conduct’s Adherence Framework A decade after the General Assembly adopted the Code of Conduct, the United Nations Economic and Social Council (ECOSOC) adopted Guidelines for the Effective Implementation of the Code of Conduct for Law Enforcement Officials. These Guidelines prompted States to codify the 1979 Code of Conduct via “national laws and practice.” The 1989 Guidelines identified several issues and included recommendations. ECOSOC emphasized the importance of law enforcement training and recommended that States implement effective discipline and supervision mechanisms that include an organized way for the public to submit complaints against law enforcement officers. Although neither the Code of Conduct for Law Enforcement Officials nor the Guidelines for the Effective Implementation of the Code of Conduct for Law Enforcement Officials are binding, the UN put in place adherence mechanisms so that the ideals and norms expressed could be realized. To encourage and monitor national implementation of the Code, the Guidelines require States to provide a progress report to the Secretary-General on their implementation of the Code, at least every five years. The information provided by governments is to be used to determine whether the Code should be revised. It is unclear what (if any) progress individual nations reported and made in implementing the Code, but issues remain, and the Code has not been revised. More must be done. #DefundthePolice and #EndSARS, Stronger Strategies for Compliance? In the United States, the #DefundthePolice movement grew from the frustration and outrage over repeated instances of police brutality and police shootings. The phrase #DefundthePolice captures a range of approaches that are meant to significantly reduce police brutality, police shootings, and the overpolicing of communities of color; these approaches range from relatively conservative municipal budget reallocation proposals to calls for the abolition of police departments paired with the expansion of community-oriented services and resources. The American Civil Liberties Union proposed a three-part solution that involves shrinking police budgets and reallocating the money within communities; creating and strengthening laws that limit police use of force; and reducing the role of police within communities. Black Lives Matter’s position is similar but more straightforward: defund does not mean reform. Efforts to reform and retrain law enforcement have not worked- more than1,000 people each year are killed by police so a new solution is needed. Black Lives Matter’s approach is two pronged: #DefundPolice and #InvestInCommunities. If the United States is interested in becoming compliant with the Code of Conduct, it must radically reimagine the nature of policing, and reducing and reformulating the function of police is certainly a worthwhile pursuit in striving for compliance with international law. Like in the U.S., improvements to policing in Nigeria may be most attainable through dismantling and reimaging policing, rather than simple reform. Similar to the #DefundthePolice movement in the U.S., the #EndSARS movement in Nigeria is also decentralized and activists have a variety of goals, some broader and others more specific. For example, the feminist coalition (a prominent group of feminist #EndSARS organizers) demanded “the disbandment of the SARS unit and an end to the predatory harassment, intimidation and physical & sexual violence millions of Nigerian men and women face at the hands of the police.” Whereas, a more pointed list of demands was put forth and circulated by #EndSARS organizers and supporters; they demanded:
- Immediate release of all arrested protesters
- Justice for all deceased victims of police brutality and appropriate compensation for their families
- Setting up an independent body to oversee the investigation and prosecution of all reports of police misconduct (Within 10 days)
- In line with the new Police Act, psychological evaluation and retraining (to be confirmed by an independent body) of all disbanded SARS officers before they can be redeployed
- Increase police salary so that they are adequately compensated for protecting lives and property of citizens.
In response to the protests and demands, Nigeria’s Inspector General of Police (IGP) did announce the dissolution of SARS. Notably, under the plan announced by the IGP, SARS officers were to be redeployed to other law enforcement units and a “new policing arrangement” was going to be formed to handle the types of crimes that SARS was intended to combat. Two days later, on October 13, the IGP announced the formation of a new Special Weapons and Tactic Team (SWAT) with a similar directive as SARS; IGP asked the public to give them time to implement reforms and assured the public that they were committed to “meet[ing] the yearnings and aspirations of the citizenry.” Time will tell whether policing by SWAT complies with international law, but there is little reason to be hopeful that this rebranding is enough to change the form of policing that is so at odds with the Code of Conduct. Like in the U.S., a more imaginative approach is likely needed to produce the types of changes that would consistently bring law enforcement practices in compliance with international law. Conclusion Law enforcement must be pushed towards comprehensive compliance with international law as a matter of practice. On the ground policing must be more aligned with the nature of policing described in the Code of Conduct. Excessive force by law enforcement is so normalized and justified and embedded in some societies that a shift is almost unimaginable; there is a belief that a recalibration would cause a complete breakdown in society. However, societies are dynamic, and periodically our ideals require us to adapt and dismantle harmful institutions and institutional norms. The Code of Conduct is not progressive, but it is a baseline- a baseline that requires States to undertake drastic changes to prevent and stop brutal outcomes.
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