Shielded from Justice: Police Brutality and Accountability in the United States
International Human Rights Standards
In addition to violating state and federal law, the use of excessive force also violates international human rights law as set out in treaties to which the U.S. is a party.237 International human rights law reinforces the U.S. civil rights standard but also goes beyond it. In recent years, the United States has ratified three major human rights treaties, which once ratified are binding on the government as laws of the land. While the executive and legislative branches of the federal government are responsible for the submission and ratification of the treaties, once ratified the treaties are binding on all levels of government, federal, state, or municipal. It is the duty of all relevant officials to uphold the treaties' obligations.
Police abuse, including the excessive use of force by police officers, is explicitly prohibited by two major international human rights treaties to which the U.S. is party.238 In 1992, the United States ratified the International Covenant on Civil and Political Rights (ICCPR). The ICCPR states: "[E]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political, or other opinion, national or social origin, property, birth or other status."239 Article 6 of the ICCPR states: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."240 Article 7 states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment...." Article 10 requires that all persons "deprived of theirliberty should be treated with humanity and with respect for the inherent dignity of the human person," and Article 26 asserts that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law."
The Human Rights Committee, which is the international body charged with monitoring compliance to the provisions of the ICCPR by the U.S. and other States Parties, expressed concern regarding police abuse in its 1995 response to the initial report of the U.S. under this covenant:
The Committee is concerned at the reportedly large number of persons killed, wounded or subjected to ill-treatment by members of the police force in the purported discharge of their duties.241
Furthermore, the Human Rights Committee urged the U.S. to:
...take all necessary measures to prevent any excessive use of force by the police; that rules and regulations governing the use of weapons by the police and security forces be in full conformity with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; that any violations of these rules be systematically investigated in order to bring those found to have committed such acts before the courts; and that those found guilty be punished and the victims be compensated.242
Similar protections are included in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the U.S. ratified in 1994.243 In addition to prohibiting torture, the States Parties have an obligation "to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture."244 Article 10 of the treaty specifically requires that education and information regarding the prohibition against torture be included in the training of law enforcement personnel,and Article 12 requires a prompt and impartial investigation when there is reason to believe an act of torture has been committed.
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), to which the United States became party in 1994, calls on states to eliminate racial discrimination and to seek to prohibit discrimination under law as well as to guard against discriminatory effects of the law. CERD provides broader protection against discrimination than that offered by the courts' interpretations of the U.S. Constitution. Under U.S. law, an individual must prove a discriminatory intent and effect, while CERD requires an intent or effect. CERD is relevant in considering police brutality because racial minorities are disproportionately represented among abuse complainants, showing a discriminatory impact that is prohibited by the convention. It is difficult to ascertain whether minorities make up a disproportionately high percentage of complainants because of more frequent arrests or encounters, or because they are singled out for rougher treatment. According to FBI data, African-Americans (adults and juveniles) made up nearly 34 percent of those arrested in cities, yet in cities where data are available regarding the race of complainants, minorities make up more than 60 percent of complainants alleging misconduct by police officers.245 Even so, many abuse allegations stem from encounters that do not lead to the arrest of the complainant, making such comparisons imperfect.
As ratified treaties, these covenants are now U.S. domestic law and, in some cases, should provide enhanced human rights protections for those within the U.S. Unfortunately, the United States has ratified these treaties with reservations, declarations and understandings that carve away many of their expanded protections. Principal among these is the declaration that none of the treaties' provisions are self-executing, meaning that upon ratification they do not automatically become available as the basis for lawsuits, but must await the passage of implementing legislation. At the same time, the Executive Branch specifically declares that no implementing legislation is necessary - i.e., that U.S. law already adequately protects the rights embodied by the treaty - even when this is not so. The effect is that ratification ismore or less meaningless for Americans who would invoke the treaties to see their rights protected.246
The Human Rights Committee noted:
Under the federal system prevailing in the United States, the states of the union retain extensive jurisdiction over the application of criminal and family law in particular. This factor, coupled with the absence of formal mechanisms between the federal and state levels to ensure appropriate implementation of the Covenant rights by legislative or other measures may lead to a somewhat unsatisfactory application of the Covenant throughout the country.247
Indeed, in his report released in April 1998 regarding the application of the death penalty and killings by police in the U.S., the U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, Bacre Waly Ndiaye, noted that:
[T]here seems to be a serious gap in the relations between federal and state governments, particularly when it comes to international obligations undertaken by the United States Government. The fact that the rights proclaimed in international treaties are already said to be part of domestic legislation does not exempt the Federal Government from disseminating their provisions. Domestic law appears de facto to prevail over international law, even if they could contradict the international obligations of the United States."248
Still, none of these reservations, declarations or understandings affect the international obligations the United States has assumed to eradicate these forms of police abuse in order to "ensure" to all persons within U.S. territory enjoy the rightsprovided for in the covenants. For the United States to comply with its international human rights obligations, it is not enough for officials to refrain from abusing those under their jurisdiction. The government must also take affirmative steps to ensure that individuals within its territory and subject to its jurisdiction are able to enjoy the rights embodied in the ICCPR and the conventions against torture and racial discrimination. In addition to the manner by which it has ratified these treaties, the U.S. federal authorities have failed to educate not only their own federal law enforcement agencies, but also state and local police officials, regarding the international human rights obligations by which they are bound.
After ratification, the U.S. is required to submit "compliance" reports to the United Nations to describe its progress in meeting a treaty's standards. In its first compliance report on the ICCPR, the U.S. barely mentioned the issue of police brutality. Instead, that July 1994 report merely cited federal criminal civil rights statutes that could be used, but rarely are used, to prosecute police officers who commit serious abuses. The report contained no statistical information or descriptions of incidents of police abuse. At this writing, the U.S. compliance reports on the torture and race conventions are more than two years overdue.
Apart from legally binding treaties, there are other international human rights standards addressing police abuse. The U.N. Code of Conduct for Law Enforcement Officials provides that: "In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons..." (Article 2) and "Law enforcement officials should use force only when strictly necessary and to the extent required for the performance of their duty" (Article 3).249 The code also states: "No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment...."(Article 5).250 While the code is not binding, it does provide authoritative guidance for interpreting international human rights law regarding policing.251
As described above, the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted in 1990 by the Eighth U.N. Congress on the Prevention of Crime and Treatment of Offenders provides international human rights standards regarding aspects of policing.252 Regarding recruitment and training of lawenforcement officials, it calls on governments and law enforcement agencies to: "ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review (Principle 18)....ensure that all law enforcemential officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force (Principle 19).... give special attention to the issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms. Law enforcement agencies should review their training programmes and operational procedures in light of particular incidents." (Principle 20).
The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provide that police officers shall "as far as possible, apply non-violent means before resorting to the use of force and firearms"(Article 4).253 The principles also call for proportionality in the amount of force used when required, for the adoption of reporting requirements when force or firearms are used, and for governments to ensure that "arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law" (Article 7). Similar requirements are found in the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, adopted by the U.N. Economic and Social Council on May 24, 1989. The principles prohibit extra-legal, arbitrary and summary executions, and call for prompt and impartial investigations and public reporting on the outcome of any investigation.
In his April 1998 report, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions examined cases of police killings in Los Angeles, New York and San Francisco.254 He raised concerns regarding the absence of national data concerning killings by the police, the poor quality of some investigations of killings by police, and the low rate of criminal prosecution in cases of police abuse resulting in death. The Special Rapporteur recommended: enhanced training on international standards on law enforcement and human rights; independent investigations of deaths in custody; and the use of special prosecutors.
237 "Excessive force" is force that exceeds what is objectively reasonable and necessary in the circumstances confronting the officer, as in Article 3 of the U.N. Code of Conduct for Law Enforcement Officials, which provides that: "Law enforcement officials should use force only when strictly necessary and to the extent required for the performance of their duty." GA resolution 34/169 passed on December 17, 1979, and Graham v. Connor 490 U.S. 386 (1989), and refers to abuse occurring during apprehension and while in custody.
238 Furthermore, Article 5 of the Universal Declaration of Human Rights, the overarching international human rights norm, prohibits torture and other cruel, inhuman or degrading treatment or punishment.
239 Article 2.1, ICCPR, A/RES/2200 A (1966). In Centre for Human Rights, Human Rights: A Compilation of International Instruments, vol. I, ST/HR/1/Rev. 5 (New York: United Nations, 1994), p. 20.
241 Concluding observations of the Human Rights Committee: United States of America. 03/10/95, A/50/40, para. 282.
243 General Assembly Resolution 39/46, December 10, 1984, in Centre for Human Rights, Human Rights: A Compilation, p. 293.
245 U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, 1995, (Washington, D.C.: U.S. Government Printing Office, 1996) p. 235. Individuals of Hispanic origin are divided among whites and blacks. Cities are defined as having a population of 10,000 or more. As described in civilian review agency reports in New York City, Philadelphia, and Minnesota. The exception, where data from the cities examined in this report are available, is in San Francisco, where in 1996 African-Americans made up 11 percent of the city's population and 25 percent of police abuse complainants.
246 Human Rights Watch/American Civil Liberties Union, Human Rights Violations in the United States (New York: Human Rights Watch/American Civil Liberties Union, 1993 and Human Rights Watch, Modern Capital of Human Rights? Abuses in the State of Georgia (New York: Human Rights Watch, 1996).
247 Concluding observations of the Human Rights Committee: United States of America. 03/10/95, A/50/40, para. 271.
248 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, submitted pursuant to Commission resolution 1997/61, Mission to the United States of America, E/CN.4/1998/68/Add.3, III (C).
249 GA resolution 34/169 passed on December 17, 1979.
251 United Nations Centre for Human Rights, Human Rights Compilation, p. 312.
252 UN Doc. A/CONF.144/28/Rev.1 (1990).
254 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, submitted pursuant to Commission resolution 1997/61, Mission to the United States of America, E/CN.4/1998/68/Add.3.
© June 1998
Human Rights Watch