The Ferguson Social Unrest and the Use of Tear Gas: Some Thoughts from the European point of viewPosted: September 11, 2014
I’m very pleased to host another guest post from Dr. Daniel Rietiker. This time Daniel provides a very interesting comparative insight into how the European Court of Human rights has approached the issue of the use of tear gas for riot control purposes. I thought this analysis was particularly useful and interesting being at the juncture of arms control law and international human rights law. I think this is an area that could be more thoroughly explored in scholarly literature.
The Ferguson Social Unrest and the Use of Tear Gas: Some Thoughts from the European point of view
Daniel Rietiker, PhD
On August 9, 2014, Michael Brown, an unarmed African-American, was fatally shot by a white police officer in Ferguson, Missouri. The incident was followed by heavy protests and civil unrest that lasted for weeks. The local police responded by using non-lethal weapons and tear gas. These tragic events raise various questions of international law. Probably the most relevant question for arms control lawyers is whether the use of tear gas by the police in the aftermath of the shooting in response to the protests was adequate and legitimate. The European Court of Human Rights (hereafter : ECtHR) has a well-established practice in the field of riot control, including the use of tear gas, that will be briefly explained here. A more comprehensive study on the interplay between arms control and human rights will be presented by this author in a forthcoming publication.
[the following observations, as far as they concern case law, are based on the ECtHR’s legal summaries that can be found on the Court’s website:
The lawfulness of riot control measures, in particular the use of tear gas, in the light of the jurisprudence of the ECtHR
It can be recalled that under the Chemical Weapons Conventions (hereafter: CWC), “law enforcement including domestic riot control purposes” are considered “purposes not prohibited” under the convention (Article II.9.d CWC). Moreover, Article I § 5 CWC stipulates that States Parties undertake not to use riot control agents as a method of warfare. The practice of the ECtHR in numerous cases in particular against Turkey in respect of the use of tear gas to counter potentially violent demonstrations reflects this logic. The Court examines these cases, inter alia, in the light of Article 3 of the European Convention on Human Rights (hereafter: “ECHR”), that reads as follows:
Article 3: Prohibition of torture:
No one shall be subjected to torture or to inhuman and degrading treatment or punishment.
Article 3 ECHR constitutes one of the cornerstones of the human rights protection and democratic society in Europe. It flows from its unqualified terms that this provision contains an absolute guarantee. Moreover, it cannot be derogated from in time of war or other public emergency (Article 15 § 2 ECHR). In other words, the States do not enjoy any margin of appreciation under Article 3, but have to refrain from inflicting the prohibited treatment in all circumstances, even for the highest reason of public interest.
The ECtHR interprets and applies exclusively the ECHR. It is not the guardian of other international treaties, such as the CWC. On the other hand, the Court does not interpret the ECHR in isolation, but in harmony with other applicable “relevant rules of international law”, as required by Article 31 § 3 c) of the 1969 Vienna Convention on the Law of Treaties (CVDT). Therefore, it is not surprising that the Court, in the examination of a possible violation of Article 3 by the use of tear gas, refers to the CWC, expressing its point of view in the following terms (Oya Ataman v. Turkey, no. 74552/01, Judgment of 5 December 2006):
17. Under Article I § 5 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (“the CWC”), each State Party undertakes not to use riot control agents as a method of warfare. Tear gas or so-called “pepper spray” are not considered chemical weapons (the CWC contains an annex listing the names of prohibited chemical products). The use of such methods is authorized for the purpose of law enforcement, including domestic riot control (Article II § 9 (d)). Nor does the CWC state which State bodies may be involved in maintaining public order. This remains a matter for the sovereign power of the State concerned. The CWC entered into force with regard to Turkey on 11 June 1997.
18. It is recognized that the use of “pepper spray” can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or allergies. In strong doses, it may cause necrosis of tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of the suprarenal gland).
It derives from these paragraphs that, in situations of riots, protests and social unrest, the appropriate use of tear gas can be a justified and proportionate use of force and therefore turn out to be compatible with Article 3 ECHR. Nevertheless, the Court has found violations of this provision as a result of an unclear legal provisions authorizing tear gas or in cases where the law-enforcement authorities had made improper or unnecessary use of tear gas (substantive limb of Article 3) [see, for instance, the case Abdullah Yaşa and Others v. Turkey, no. 44827/08, 16 July 2013, where the applicant had been injured in the nose by a tear gas canister fired by a police officer; his injuries had unquestionably been serious enough to meet the threshold of Article 3 ECHR].
Moreover, even though the threshold of Article 3 is generally not met by the appropriate use of tear gas, the authorities are still under a procedural obligation to conduct an in-depth investigation into alleged violations of human rights (formal limb of Article 3 ECHR). Under this duty, the State has to conduct a satisfactory investigation allowing the accurate establishment of facts, as well as the identification and prosecution of the officers responsible for acts amounting to ill-treatment in the sense of Article 3 ECHR.
It is also noteworthy that in some instances, the Court referred to another human rights body, namely the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT), that had repeatedly expressed concerns over the use of tear gas in law-enforcement situations and urged the States to adopt clearer directives in national law on that subject. This was also the case in the recent judgment İzci v. Turkey (42606/05, 23 July 2013), where the Court, unanimously, found violations of the substantive and procedural aspects of Article 3 of the ECHR by the use of disproportionate force and lack of an effective investigation, and besides a violation of Article 11 on account of the failure to respect the applicant’s right to freedom of assembly. In this case, the applicant had taken part in a demonstration in Istanbul to celebrate Women’s Day which had ended in clashes between police and protesters. Video footage of the events showed police officers hitting a large number of demonstrators with truncheons and spraying them with tear gas. Women who had taken refuge in shops were dragged out by the police and beaten up. The police officers had not issued any warnings to disperse demonstrators before attacking them and the demonstrators, for their part, had not tried to respond to the attack but had only tried to flee.
This case is a typical example for the repeated violations of the ECHR that occur in demonstrations in Turkey. What is remarkable about this case is the fact that Court considered these problems as “systematic”, reiterating that it had already found in over 40 judgments against Turkey that the heavy-handed intervention of law-enforcement officials in demonstrations had amounted to a violation of Article 3 and/or Article 11 ECHR. The common feature of these cases is the unwillingness of the police forces to show a certain degree of tolerance towards peaceful gatherings and, in some instances, the precipitate use of force, including tear gas. Moreover, in over 20 of the judgments, the Court had already observed the failure of the Turkish authorities to carry out effective investigations into allegations of ill-treatment by law-enforcement personnel during demonstrations. It further stressed that 130 applications against Turkey concerning the right to freedom of assembly and/or use of force by law-enforcement officials during demonstrations were currently pending.
Considering the perspective that generally prompts the procedure with a view of implementing the final judgments, combined with the Court’s clear message in the İzci case, there is hope that the Committee of Ministers of the Council of Europe (CoE) – the body responsible for the supervision of the implementation of the ECtHR’s judgments (Article 46 ECHR) – will impose on Turkey strong measures, such as an order to review national legislation and to train the members of the police in order to comply with Article 3 in law-enforcement situations including the use of tear gas.
It goes without saying that the cases mentioned above are not identical to the circumstances of the unrest in Ferguson following the shooting of Michael Brown, nor is the legal framework for the use of force by the police the same. In the European context, a very high standard applies, both on the substantive and the formal (procedural) level. As far as the latter is concerned, and taking the Ferguson events as example, the investigating authority would have to establish what really happened in the aftermath of August 9, 2014, and it would ultimately incumbent on the judges to decide whether the force used by the police to counter the riots, including the use of tear gas, was in line with the applicable law and the state of art in this field. Such a thorough international scrutiny, based on a well-established practice by the ECtHR, does not exist in the United States.
(Daniel Rietiker, PhD, Lecturer in international law, University of Lausanne, Swiss Member of the ILA’s International Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law and Visiting Fellow at the Human Rights Program of Harvard Law School, spring/summer terms 2014).