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Topic two - The legal framework


International human rights law provides the overarching framework for the international law governing law enforcement. Many of the detailed rules regulating police use of force are found in a combination of customary law and general principles of law. The two most important general principles are necessity and proportionality. As the United Nations Special Rapporteur on extrajudicial, summary, and arbitrary executions stated in 2016, "states must adopt a clear legislative framework for the use of force by law enforcement or other individuals that complies with international standards, including the principles of necessity and proportionality" (UN Special Rapporteur on Summary Executions, 2016, para. 75). The rules were first articulated in two sets of United Nations standards and norms on crime prevention and criminal justice: the 1979 Code of Conduct for Law Enforcement Officials (GA Resolution 34/169) (hereafter, "Code of Conduct"); and the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (GA Resolution 45/166) (hereafter, "Basic Principles").

The 1979 Code of Conduct was adopted by United Nations General Assembly Resolution 34/169 of 17 December 1979. The 1990 Basic Principles were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders and welcomed by United Nations General Assembly Resolution 45/166 of 18 December 1990 and governments were invited to respect them. The European Court of Human Rights and the Inter-American Court of Human Rights have both cited the 1990 Basic Principles as authoritative statements of international rules governing use of force in law enforcement (European Court of Human Rights, 2013, para. 90; Inter-American Court of Human Rights, 2015, para. 264). In the latest draft of its new General Comment on the right to life, the Human Rights Committee states that "all operations of law enforcement agents should comply with relevant international standards, including the Code of Conduct … and the Basic Principles on the Use of Force and Firearms" (Human Rights Committee, 2017, para. 20).

The 1990 Basic Principles elaborate in greater detail the norms on use of force set out in Article 3 of the 1979 Code of Conduct, which provides that law enforcement officials "may use force only when strictly necessary and to the extent required for the performance of their duty". Both instruments apply explicitly to the acts of any organs of the state when using force for the purpose of law enforcement. Thus, the rules govern not only the police but also any other law enforcement agency, state security force, a force such as a gendarmerie, or the military, whenever they are engaged in domestic law enforcement. The rules similarly apply to a private security company to which the state or one of its organs has delegated police powers.

Next: Topic three - The general principles of use of force in law enforcement
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