Partly on the initiative of Privacy First, a special Committee of the United Nations will this week in Geneva look into the imminent adoption of Taser weapons among the entire Dutch police force. This adoption possibly contravenes the UN Convention against Torture.
Right to physical integrity
For Privacy First, the right to privacy has always been a broad human rights concept. This includes the right to physical integrity. In recent years, this right has come under increasing pressure, think of preventive frisking on the streets, body scans at airports, DNA databases, the new Organ Donation Act in the Netherlands, discussions about compulsory vaccinations, etc. The right to physical integrity is laid down not only in the European Convention on Human Rights, but is also protected by Article 11 of the Dutch Constitution. At an international level, this right is part of the category of human rights which have the strongest protection. The absolute prohibition of torture and other cruel, inhuman or degrading treatment falls in the same category.
UN Convention against Torture
In international law, torture is in the small category of absolute prohibitions. Other examples within this category are the prohibition of genocide, international aggression (illegal warfare), slavery, racial discrimination, apartheid and piracy. Violation of these norms is always and under all circumstances prohibited. Anyone anywhere in the world who is committing or has committed torture or other cruel, inhuman or degrading treatment or punishment should therefore be prosecuted and extradited. Public officials, ministers, presidents and Heads of State are no exception to this rule. Since 1988, the Netherlands is party to the convention in which this is laid down: the UN Convention against Torture. Every contracting party is periodically reviewed by the treaty monitoring body in Geneva: the UN Committee against Torture. Opinions delivered by this Committee provide authoritative guidance on the application and interpretation of the convention. On Tuesday and Wednesday this week, it will be the Netherlands’ turn to be reviewed (the last time was in 2013): on Tuesday the Netherlands will be questioned by the Committee’s members, after which the Dutch government delegation will provide its answers on Wednesday. Subsequently, the Committee will issue a series a recommendations (‘Concluding Observations’) to the Netherlands.
Taser weapons on the UN agenda
In preparation of the Dutch session and on behalf of a broad coalition of civil society organizations, the Dutch section of the International Commission of Jurists for Human Rights (Nederlands Juristen Comité voor de Mensenrechten, NJCM) has recently sent a so-called 'shadow report' about the Netherlands to the Committee in Geneva. On the initiative of Privacy First, the issue of Taser weapons was expressly put on the agenda, as was the case in 2013. The situation is such that the Dutch government aims to provide every Dutch police officer with his own Taser weapon, media reported only last week. Thus far, only special arrest teams are equipped with Taser weapons. The expectation is that the wider, more general deployment of Taser weapons will lead to structural excesses. In this respect, all scandals with Taser weapons, particularly those in the United States, speak for themselves. In Privacy First’s view, the use of Taser weapons can easily lead to violations of the international prohibition of torture or cruel or inhuman treatment and the associated right to physical integrity. Taser weapons lower the threshold for the use of violence and hardly leave behind any visible traces. By the same token, Taser weapons can cause serious physical and mental damage. This results in serious risks for the Dutch population and for certain vulnerable groups in particular. That’s why our joint shadow report to the Committee emphasizes these risks (see pages 15-16 of the report).
Previous criticism of the UN Committee
Both the Dutch coalition of civil society organizations as well as Amnesty International have requested the UN Committee to cross-examine the Dutch government on this issue and advise the Netherlands not to equip the entire police force with Taser weapons. This is what Privacy First and other parties had already pushed for during the previous session of the UN Committee in 2013. Back then, this led the Committee to issue the following urgent recommendations to the Netherlands:
“The Committee recommends to [the Netherlands], in accordance with articles 2 and 16 of [the Convention against Torture], to refrain from flat distribution and use of electrical discharge weapons by police officers. It also recommends adopting safeguards against misuse and providing proper training for the personnel to avoid excessive use of force. In addition, the Committee recommends that electrical discharge weapons should be used exclusively in extreme limited situations where there is a real and immediate threat to life or risk of serious injury, as a substitute for lethal weapons.” (paragraph 27).
Privacy First is confident the Committee will again come up with critical recommendations.
Update 22 November 2018: yesterday and the day before the Dutch session took place before the UN Committee. Numerous topical issues were critically examined, including Taser weapons. Representatives of Curaçao, Sint Maarten and Aruba emphatically declared that no Taser weapons are used on their islands. This contrasted sharply with the statements made by the representative of the Dutch government (Secretary General Siebe Riedstra of the Ministry of Justice and Security), who barely addressed the issue and merely remarked that the Dutch government will take a decision on the adoption of Taser weapons in 2019. Below are all the relevant audio clips:
Questions by Abdelwahab El Hani on behalf of the UN Committee, 20 November 2018:
(simultaneous interpretation into English)
Answer by Siebe Riedstra on behalf of the Netherlands:
New questions by Abdelwahab El Hani on behalf of the UN Committee, 21 November 2018:
(simultaneous interpretation into English)
Answer by Siebe Riedstra on behalf of the Netherlands:
See also the UN press release about the Dutch session in Geneva, the full video recording (day 1 and day 2) and the verbatim report of proceedings (day 1 and day 2). The UN Committee is expected to present its Concluding Observations about the Netherlands within a few weeks’ time.
Update 7 December 2018: today the UN Committee has issued a number of Concluding Observations to the Dutch government, urging the Netherlands not to equip the entire police force with Taser weapons and to limit their adoption to cases that can be deemed proportionate and strictly necessary. The Committee emphatically cautions against using Taser weapons against vulnerable people. Moreover, the Committee expresses serious concerns about the way Taser weapons have been used by the Dutch police thus far.The entire report by the Committee can be found HERE (pdf). Below is the part concerning Taser weapons (paragraph 42-43):
Electrical discharge weapons (tasers) and pepper spray
42. The Committee notes with concern that despite its previous recommendations against the routine distribution and use of electrical discharge weapons (tasers) by police officers, the State party conducted a pilot testing from February 2017 to February 2018 without clear instructions on their restrictive use. It is particularly concerned at information that during this pilot period, police officers used tasers in situations where there was no real and immediate threat to life or risk of serious injury, including in cases where targeted individuals were already in police custody. It is further concerned about reports of the frequent use of the so-called “stun mode” which is intended to merely inflict pain, and the incidents in which tasers were used against minors as well as persons with mental disabilities in healthcare settings. In addition, the Committee is concerned about information that the use of pepper spray is not regulated fully in line with principles of necessity and proportionality and that the new draft Instructions on the Use of Force is expected to further lower the threshold for using it and to permit its use against vulnerable persons including pregnant women and children (arts. 2, 11 and 16).
43. Recalling the Committee’s previous recommendations (CAT/C/NLD/CO/5-6, para. 27), the State party should:
(a) Refrain from routine distribution and use of electrical discharge weapons by police officers in their day-to-day policing, with a view to establishing a high threshold for their use and avoiding excessive use of force;
(b) Ensure that electrical discharge weapons are used exclusively in limited situations where there is a real and immediate threat to life or risk of serious injury, as a substitute for lethal weapons and by trained law enforcement officers only;
(c) Explicitly prohibit the use of electrical discharge weapons and pepper spray against vulnerable persons, including minors and pregnant women, and in healthcare settings, including mental health institutions, and especially prohibit the use of electrical discharge weapons in the custodial settings;
(d) Ensure that the instructions on the use of electrical discharge weapons and pepper spray emphasize the absolute prohibition of torture and the need to respect the principles of necessity and proportionality, fully in accordance with the Convention and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;
(e) Adopt safeguards against misuse of electrical discharge weapons and pepper spray and provide proper training and awareness programmes for the law enforcement personnel;
(f) Monitor and regularly review the use of electrical discharge weapons and pepper spray, and provide the Committee with this information.
Privacy First appreciates the critical opinion and the principled position of the Committee. Not least because it creates a strong precedent for other countries worldwide. Privacy First will ensure that the Dutch government will comply with the Committee’s observations.