Explosive weapons for law enforcement?

The cases surveyed above, and national regulations discussed in section 2, suggest that explosive weapons are not entirely absent from law enforcement.²⁸⁰ But considering the challenges that the use of explosive weapons in the victinity of civilians presents under HRL, the silence of national regulations with regard to explosive weapons should not be interpreted as acceptance of these weapons for policing. When states resort to the use of explosive weapons for—what they may claim to be—

Commission of Human Rights, Cagirga v. Turkey, Report, Application no.

21895/93, 7 July 1995.

280 Note also the recent acquisition of fragmentation hand grenades by certain Mexican police forces. According to Ramsey, Mexico’s Secretariat of National Defense “received requests from at least nine state governments for hand grenades in order to give their local police forces an edge in the war on drugs” since 2009. “The defense agency has already given hand grenades to police in several states, including Zacatecas, Guerrero, Coahuila and Yucatan.

On the waiting list for the explosives are Guanajuato, Jalisco, and Veracruz, which are expected to arm some local police with grenades by the end of the year”. Geoffrey Ramsey, “Mexican State Police Seek Increased Firepower”, InSight Crime—Organized Crime in the Americas, 22 February 2011, <www.

insightcrime.org/insight-latest-news/item/594-mexican-state-police-seek-increased-firepower>.

law enforcement purposes, such use tends to be justified as an exceptional measure taken in extraordinary circumstances. This reinforces the strong presumption against explosive weapons for the purposes of policing.

The ECtHR in Ahmet Özkan and others v. Turkey cited above, for instance, based its finding that the use of force did not entail a disproportionate degree of force to a large part on the existence of “serious disturbances in south-east Turkey involving armed conflict between the security forces and members of the PKK”.²⁸¹ In Isayeva v. Russia, and a related case brought before the ECtHR, the Court accepted that the situation in Chechnya called for “exceptional measures”, which could presumably include the deployment of “army units equipped with combat weapons, including military aviation and artillery”. Reference is, of course, to the de facto existence of a non-international armed conflict, a situation characterized by loss of control by the state over the monopoly of deadly force, and even over parts of the national territory.²⁸²

Even in a situation of civil war, however, the use of certain explosive weapons in the vicinity of civilians was found to be incompatible with law enforcement standards. In Isayeva v. Russia, the ECtHR considered that even if the aim of the operation was to “protect the population of the village which had been held hostage by a large group of well-equipped and well-trained fighters against unlawful violence”, “The massive use of indiscriminate weapons” stood “in flagrant contrast with this aim” and could not be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by state agents.²⁸³ In Esmukhambetov v. Russia,²⁸⁴ the government claimed that the strike resulting in the destruction of homes and property had been “necessary in order to suppress the criminal activity of members of illegal armed groups and to prevent terrorist attacks they had been preparing”. The Russian Federation also argued that it was carried out in view of the impossibility of using ground troops in the area. The Court did not subscribe to this

281 ECtHR, Ahmet Özkan and others v. Turkey, Judgment, Application no. 21689/93, 6 April 2004, para. 305. More contentious, the Court also based its finding on the fact that apart from one little girl, “no civilians were injured as a result of the security forces’ intensive firing”.

282 ECtHR, Isayeva v. Russia, Judgment, Applications no. 57950/00, 24 February 2005, para. 180.

283 Ibid., para. 191.

284 ECtHR, Esmukhambetov and others v. Russia, Judgment, Application no. 23445/03, 29 March 2011, paras. 146, 148, 171.

argument. It found that the deployment of military aviation equipped with heavy weapons was “in itself, grossly disproportionate to the purpose of effecting the lawful arrest of a person”.

The rejection of these justifications in the context of law enforcement indicates that when states resort to the use of explosive weapons, and particularly, of heavy explosive weapons, an important threshold has been crossed: the violence is of an intensity commonly associated with that of an armed conflict.²⁸⁵ The evolution of events in Syria illustrates this: “On 3 February 2012, in an escalation of violence, State forces in Homs began shelling densely populated areas in Khaldieh with heavy weapons. … On 6 February, the same type of operation was extended to Bab Amr, which the Government shelled and attacked with rockets”.²⁸⁶

Soon after government forces started using heavy explosive weapons in Homs, the violence there, and subsequently also in other parts of the country, was qualified as a civil war.²⁸⁷ Although not the only factor in the determination of whether an armed conflict exists in legal terms, use of heavy explosive weapons has been cited as an important indicator, for instance, by the ICTY. The Trial Chamber in the case of Ljube Boškoski and Johan Tarcˇulovski concluded that “the type of weapons used, in particular the use of heavy weapons … the extent of destruction and the number of casualties caused by shelling or fighting”, among other factors, indicated that the intensity of violence was that of a non-international armed conflict.²⁸⁸ Along the same lines, the representative of Luxemburg remarked

285 For a non-international armed conflict to exist in the legal sense, the group (or groups) opposing the government’s armed forces are required to possess a certain level of organization. On the legal notion of armed conflict, see, ICRC,

“How is the Term “Armed Conflict” Defined in International Humanitarian Law?”, opinion paper, March 2008.

286 United Nations Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN document A/HRC/19/69, 22 February 2012, para. 46.

287 Stephanie Nebehay, “Some Syria violence amounts to civil war:

Red Cross”, Reuters, 8 May 2012, <http://in.reuters.com/assets/

print?aid=INDEE8470AF20120508>. For a more detailed assessment, see, Rule of Law in Armed Conflicts Project, Syria: Current conflicts, 2012.

288 ICTY, The Prosecutor v. Ljube Boškoski, Johan Tarcˇulovski, Trial Chamber II, Judgement, case IT-04-82-T, 10 July 2008, para. 177. In relation to the organizational requirements of an armed group, party to a non-international armed conflict, the Trial Chamber lists a number of explosive weapon types in

in June 2012 that “the violence in some regions of Syria has reached such a level of intensity, and the use of heavy weapons, artillery and tanks in urban areas and of explosive devices of all types has reached so high a level that there can no longer be any doubts about the situation”.²⁸⁹ Of course, states may want to avoid the association of the use of explosive weapon in populated areas with the existence of armed conflict. Turkey and the Russian Federation in the aforementioned cases have tried to justify recourse to explosive weapons by reference to the fight against terrorism on their territory. With the same justification states’ police and military forces have used explosive weapons abroad.²⁹⁰ Drone strikes, such as those carried out by the US Air Force and the Central Intelligence Agency (CIA) in a number of countries with which the United States does not consider itself “at war” are an example. These justifications have generated significant controversy.²⁹¹ Considering that the ECtHR applies doctrines developed on the use of force in law enforcement operations even to large battles involving thousands of insurgents, artillery attacks, and aerial bombardment,²⁹² the same stringent HRL standards on the use of

the possession of the non-state armed group, including portable missiles and mortars (ibid., para. 281).

289 Security Council, UN document S/PV.6790 (Resumption 1), 25 June 2012, p. 10.

290 In this connection arise issues of broader concern, about the role of the military in law enforcement, respect for human rights in the fight against terrorism, the legality of targeted killings and about accountability, transparency and redress to victims. Although essentially the same HRL standards apply to law enforcement on a states’ own territory, within its jurisdiction, and among its citizens as apply on another states’ territory, outside of its jurisdiction, among foreign populations, in practice, considerable challenges arise to holding states accountable for use of force abroad because of jurisdictional limits of human rights treaties and difficulties in the attribution of conduct to a state.

On this topic, see, ECtHR, Bankovic´ and others v. Belgium and others, Decision (admissibility), Application no. 52207/99, 2001.

291 For a recent discussion of US drone strike policy and its humanitrian impacts, see International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), Living Under Drones:

Death, Injury, and Trauma to Civilians From US Drone Practices in Pakistan, September 2012; Center for Civilians in Conflict and Human Rights Clinic (Columbia Law School), The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions, 2012.

292 William Abresch, “A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya”, The European Journal of

lethal force apply to “counter-terrorist operations” if these are not part of military hostilities during an armed conflict.²⁹³ States have the opportunity to derogate temporarily from some of their obligations in times of public emergency that threatens the nation, as may arise in connection with civil unrest or war,but no derogation is permitted to the right to life, except with respect to deaths resulting from lawful acts of war.²⁹⁴ The legality of

“acts of war” is assessed in light of the relevant rules of IHL. As the use of explosive weapons in the vicinity of civilians becomes generally permissible in the context of armed conflict, it also means that when states resort to such use “a key boundary of civilian protection has been crossed”.²⁹⁵

International Law, vol. 16, no. 4, 2005, p. 742. This has been criticized by some scholars and practitioners. See, e.g., ECtHR, Abuyeva and others v. Russia, Judgment, Application no. 27065/05, 2 December 2010, Concurring Opinion of Judge Malinverni, Joined by Judges Rozakis and Spielmann, para. 3.

293 United Nations Economic and Social Council, Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, 24 May 1989, Principle 1: “Governments shall prohibit by law all extra-legal, arbitrary and summary executions … . Exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions. Such executions shall not be carried out under any circumstances including, but not limited to, situations of internal armed conflict, excessive or illegal use of force by a public official”.

294 Human Rights Committee, CCPR General Comment No. 29: States of Emergency (art. 4), UN document CCPR/C/21/Rev-1/Add.11, 31 August 2001; Council of Europe, European Convention on Human Rights, 4 November 1950, art. 15.

295 AOAV, Explosive Weapons Update: Côte d’Ivoire, 10 August 2011, p. 1;

Richard Moyes, “State use of explosive weapons: an indicator of crisis”, Article36, January 2012, elaborates on this point. General acceptance of the use of explosive weapon in situations of armed conflict raises concern that governments may intentionally try to escalate violence to legitimize use of such weapons. However, Annyssa Bellal and Louise Doswald-Beck, “Evaluating the Use of Force during the Arab Spring”, Yearbook of International Humanitarian Law, vol. 14, 2012, p. 19, asserts that given the strict human rights constraints on the use of force, HRL in effect prohibits governments from creating a non-international armed conflict.

3.4. USE OF EXPLOSIVE WEAPONS