Business

Deadly force by the State — no more business as usual

Legal Notes

With Malene Alleyne

Wednesday, January 09, 2013    

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AN article on the use of deadly force by the State may seem unusual for the Business Observer. However, with the unacceptably high number of fatal shootings by police in Jamaica, this cannot be business as usual.

The use of deadly force raises serious concerns about the protection of the right to life which is enshrined in our Constitution and in relevant international human rights instruments. As the supreme right and an essential prerequisite for the enjoyment of all other rights, the right to life is everybody's business. Below is a brief overview of the legal framework governing the use of deadly force by the State and the protection of the right, to life during law- enforcement activities.

Section 13 of Jamaica's Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act provides for the right to life and the right not to be deprived of it except in the execution of a death sentence. Jamaica is also a State Party to, and therefore bound by, the Inter-American Convention on Human Rights ("American Convention") and the International Covenant on Civil and Political Rights (ICCPR). The American Convention and the ICCPR recognise that the right to life is non-derogable. They provide that the right to life shall be protected by law and prohibit the arbitrary deprivation of life.

The American Convention and related jurisprudence make it clear that it is not sufficient for a state to simply refrain from violating the right to life. Rather, the right to life imposes a range of positive obligations that involve every aspect of public authority. Article 1(1) of the American Convention imposes an express obligation on States Parties to not only "respect" the Convention rights and freedoms, but also to "ensure" the free and full exercise of these rights. To the extent that Convention rights are not already ensured by legislative or other provisions, article 2 of the American Convention requires that States Parties "adopt such other legislative or other measures as are necessary to give effect to those rights or freedoms". The Inter-American Court of Human Rights ("Inter-American Court") has held that the obligation to ensure the right to life means that States must "prevent, investigate and punish" all violations and provide compensation.

The duty to prevent violations of the right to life requires, among other things, that national laws and policies strictly limit the circumstances in which a person may be deprived of his/her life by State authorities. In this regard, international human rights law requires that the use of force by State agents accord with the principles of necessity and proportionality. When the use of force does not accord with these principles, any loss of life that results is arbitrary and thus a violation of the right to life.

The principles of necessity and proportionality are reflected in the UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials ("Basic Principles"). These instruments are important as they were developed on the basis of wide international consensus. Also, the Inter-American Court and Inter-American Commission on Human Rights have relied on these and other non-binding human rights instruments to determine the legality of the use of force by State authorities, including in Jamaica.

The general standard of proportionality as stated in principle 5(a) of the Basic Principles requires that the use of force be "in proportion to the seriousness of the offence and the legitimate objectives to be achieved". The principle of necessity, as expressed in principle 4, states that law enforcement officials may use force and firearms "only if other means remain ineffective or without any promise of achieving the intended result". The Basic Principles also state that law enforcement officials, in carrying out their duty, shall as far as possible apply non-violent means before resorting to the use of force and firearms. The intentional use of lethal force is only legal if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or non-lethal incapacitation, of preventing that threat to life (making lethal force necessary).

The Jamaica Constabulary Force (JCF) Human Rights, Use of Force and Firearms Policy ("Policy") incorporates these principles of necessity and proportionality. For example, principle 5(a) of the Basic Principles is reproduced in its entirety. Article 16 of the Policy states that, in accordance with article 3 of the Code of Conduct, members of the JCF are to use force only "when strictly necessary and to the extent required for the performance of their duties". The policy also calls for the use of non-violent means before resorting to force.

With respect to the duty to investigate and punish, international human rights law requires that States investigate alleged violations of the right to life promptly, thoroughly and effectively through independent and impartial bodies. Guidance on the scope of this duty can be found in international instruments such as the UN Principles on the Effective Prevention of Extra-legal, Arbitrary and Summary Executions. These instruments emphasise the importance of conducting adequate autopsies; collecting and analysing physical evidence and controlling and preserving crime scenes. Also, the Inter-American Court has found that if the State apparatus acts in such a way that the violation of the right to life goes unpunished, the state has failed to comply with article 1(1) of the American Convention as well as articles 8 and 25 which guarantee the right to a fair trial and judicial protection.

To conclude, the State's use of deadly force concerns all Jamaicans and protection of the right to life involves all levels of public authority and every aspect of the criminal justice system. The State has the right and duty to ensure public security, which may justify the use of deadly force in certain limited situations. However, as the Inter-American Court emphasises, there are limits to the law enforcement powers of the State. State action must not be taken at the expense of fundamental human rights.

Malene Alleyne is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Commercial and Property Department. Malene may be contacted via malene.alleyne@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.

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