Command Responsibility and the Use of Force by the Police

Abstract

The police power to use force and firearms is granted to law enforcement officials for the fulfilment of their duties, and its exercise comes with obligations and responsibilities—notably in terms of the respect for and protection of human rights that may be affected by the use of this power.

Drawing from findings and recommendations from the Amnesty International publication, Use of force: Guidelines for implementation of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement officials (2015), this article looks more closely at the role of commanding and superior officers in relation to the use of force. In this regard, three layers of responsibility can be distinguished:

• Commanding and superior officers can themselves be involved in situations in which force and firearms are used and in such situations are responsible for their own actions and omissions, for the orders they have given or failed to give, as well as for the planning and preparation of policing operations.

• They are responsible for defining an operational framework that ensures that law enforcement officials resort to the use of force and firearms in a lawful and human-rights-compliant manner. This includes notably human-rights-compliant policies, operational procedures and instructions, as well as the provision of appropriate equipment and training.

• They are supposed to effectively supervise and control their subordinates and to ensure that law enforcement officials are held accountable if they have resorted to unlawful use of force and firearms.

When commanding and superior officers fail to assume their responsibility in any of these areas, they themselves must be held accountable.

Dr Anja Bienert is a Senior Police Expert at the Police and Human Rights Programme of Amnesty International.

Appendix

Amnesty International—Use of Force: Guidelines for implementation of the UN Basic Principles for the Use of Force and Firearms by Law Enforcement Officials—extract on command responsibility¹⁸

Guideline 3: Domestic legislation must ensure full and transparent accountability of law enforcement officials for the use of force and firearms.

• (a) Law enforcement officials must not be exempted from criminal liability for unlawful acts committed in the course of duty.

• (b) Law enforcement officials must be entitled to refuse orders that are clearly unlawful and must be held accountable for knowingly executing unlawful orders. Such orders may not serve as an acceptable defence.

• (c) Criminal investigations must seek to evaluate the responsibility under criminal law of the acting law enforcement officials for any unlawful behaviour, the responsibility of colleagues who witnessed an unlawful act but did not take steps to prevent it, and the responsibility of commanding and superior officers who may have given an unlawful order or have failed to prevent the unlawful use of force.

• (d) Commanding and superior officers must be held accountable not only for unlawful orders they have given, but also for failings and other omissions in their superior and command responsibility which resulted in death or serious injury. In particular, they should be held liable when they knew or ought to have known that the law enforcement officials under their control and command committed unlawful acts and when they have failed to prevent them from doing so. They should also incur liability when they have failed to undertake measures of bringing those law enforcement officials before competent authorities for investigation.

Guideline 4: The command leadership of law enforcement agencies must create an operational framework that contains instructions for various kinds of situations that law enforcement officials may face during their work, including decision making criteria and the conditions for the use of force.

Guideline 5: Law enforcement agencies must provide an operational framework that provides clear instructions on when and how to use a firearm.

Guideline 6: Law enforcement agencies should have a range of less lethal equipment at their disposal that allows for a differentiated use of force in full respect of the principles of necessity and proportionality, and ensures that harm and injury are kept to the minimum.

Guideline 9: Law enforcement agencies must ensure that their personnel are able to meet the high professional standards established in the Basic Principles.

Guideline 10: The command leadership and all other senior officers or supervisors must be held accountable for ensuring that the agency and its members fulfil their law enforcement duties and responsibilities in compliance with the law, including human rights law, and in an effective and professional manner.

• (a) There must be a functioning and transparent system of command responsibility and command accountability and a pre-established chain of command with clearly assigned responsibilities. All decisions taken should be traceable and those who have taken them must be held accountable for them.

• (b) A pre-established supervision and reporting system within the law enforcement agency must allow for the assessment of the compliance of law enforcement officials with the law and internal regulations, as well as of their professional skills, competency and effectiveness. Superiors are responsible for correctly and appropriately supervising their subordinates.

• (c) Internal supervision and investigation should serve to assess the need for corrective measures (revision of procedures, equipment, training), the situation of the acting law enforcement officials (need for coaching, training, psychological support etc.), any failures in command responsibility and the need for disciplinary actions in case of any use of force that was in disrespect of the operational framework.

• (d) A detailed reporting system that allows for the evaluation of the lawfulness and appropriateness of the use of force needs to be in place, and should include reports by colleagues who may have witnessed the use of force. Obligatory reporting should be established not only for situations in which a firearm was discharged or in which death or serious injury occurred, but for all situations in which law enforcement officials have resorted to the use of force. Law enforcement officials who report on unlawful use of force by colleagues or on an unlawful order by their superiors must be protected against any retribution or other negative consequences.