A/72/178: Report on the extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment
21 July 2017
Torture and inhuman treatment
In this report, the Special Rapporteur examines whether, and in which circumstances, the extra-custodial use of force by State agents amounts to torture or other cruel, inhuman or degrading treatment or punishment and how the prohibition of torture and other cruel, inhuman or degrading treatment or punishment applies to the development, acquisition, trade and use of weapons in law enforcement.
Apart from prohibiting the arbitrary deprivation of life and providing a few principles on the lawful use of lethal force, human rights treaties do not expressly regulate the extra-custodial use of force. Instead, the contemporary legal principles governing the use of force by law enforcement officials (“use of force principles”) have been derived primarily from State practice and the application and interpretation of these very general treaty provisions in case law. The principles have been restated in two soft law instruments, namely, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the Code of Conduct for Law Enforcement Officials, and today can be regarded as general principles of law. In particular, the use of force by State agents is governed by the following cumulative principles:
- Legality: any use of force must have a legal basis and pursue a lawful purpose.
- Necessity: force must only be used when, and to the extent, strictly necessary for the achievement of a lawful purpose.
- Proportionality: the harm likely to be inflicted by the use of force must not be excessive compared to the benefit of the lawful purpose pursued.
- Precaution: law enforcement operations must be planned, prepared and conducted so as to minimize, to the greatest extent possible, the resort to force and, whenever it becomes unavoidable, to minimize the resulting harm.
The Special Rapporteur on Torture recommends States to ensure that their national law prohibits torture and other cruel, inhuman or degrading treatment or punishment in all circumstances, including extra-custodial settings; ensure that all law enforcement officials are trained, equipped and instructed so as to prevent any extra-custodial use of force amounting to torture and other ill-treatment; in the development, procurement or trading of weapons, including other means of deploying force and “less lethal” weapons, States should conduct systematic legal reviews with a view to determining whether the use of such weapons would violate the prohibition of torture and other ill-treatment, or any other obligation under international law, or would significantly increase the risk of such violations occurring; and establish effective systems for monitoring and reporting on the use of force, and relevant information should be made accessible to the public, including statistics on when, against whom and through which means force is used and on the resulting harm.
The extent to which and how the prohibition of torture and other cruel, inhuman or degrading treatment or punishment is applied to the use of force by State agents outside custodial settings (“extra-custodial” use of force) has not been previously systematically examined.
From this perspective, the Special Rapporteur aimed to examine how the prohibition of torture and other cruel, inhuman or degrading treatment or punishment should be applied and interpreted in extra-custodial settings, particularly in view of potential justifications such as law enforcement, public security, crowd control or self-defence and the defence of others. The Special Rapporteur also endeavoured to examine the extent to which the use of certain types of weapons, riot control devices or other means and methods of law enforcement would have to be considered intrinsically cruel, inhuman or degrading in the light of their immediate to long-term consequences.
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
the General Assembly at its 72nd session, October 2017