ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES
While a distinction is often made between the use of force, arms, firearms and restraints, and
specific standards are applicable to them, a number of principles apply to all uses of force and
other coercive measures. These are:
•
principle of legality
•
principle of necessity
•
principle of proportionality
•
relevance of classification, prisoner file management, conflict prevention and dynamic
security
•
documentation of use
•
training
•
accountability.
In order to be permissible the use of force or arms must be ‘used only in exceptional
circumstances, when strictly necessary as specified by law’.422 The experts recommended policymakers provide written regulations setting out which different force options can (and cannot) be
used, the criteria for their deployment and the risks that accompany their use. Providing clear
guidance on different use of force options has been shown to influence significantly their use in
practice.423
The principle of necessity means that force or arms should be used ‘only when less extreme
means are insufficient’ to achieve the objective. Basic Principle 4 of the BPUFF states that law
enforcement officials shall ‘as far as possible, apply non-violent means before resorting to the use
of force and firearms’ and may use them ‘only if other means remain ineffective or without any
promise of achieving the intended result’. Basic Principle 5 uses the term ‘unavoidable’,424 and the
Special Rapporteur on Torture refers to the concept of ‘last resort’.425
The experts stressed that factors such as a sufficient prisoner-staff ratio and adequate training of
officers play a role when determining the necessity of such an intervention. They further recalled
the relevance of conflict prevention and mediation as alternatives to physical intervention.426
The experts noted that the use of force, arms and/or restraints may increase rather than decrease
the number and severity of incidents. As captured in the 2010 Survey of the UN and other best
practices in the treatment of prisoners in the criminal justice system:
Special Rapporteur on Torture report 2013, A/68/295, para. 58.
422
For example, when the Dallas Police implemented a more ‘restrictive’ policy on conducted energy weapons, the use
of these weapons ‘dropped significantly’ (Stephen Bishopp, David Klinger and Robert Morris, ‘An Examination of the
Effect of a Policy Change on Police Use of TASERs’, Criminal Justice Policy Review, Vol. 26 No. 7, October 2015, p.
737)
423
Basic Principle 5 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
424
Special Rapporteur on Torture report 2013, A/68/295. para. 58.
425
Rule 38(2) in this context as it encourages, ‘to the extent possible, conflict prevention, mediation or any other alternative dispute resolution mechanism’ (although in the context of disciplinary measures), and of Rule 76(c) which
encourages the use of the concept of dynamic security. (See Chapter 2, Prison management – Dynamic security and
conflict prevention.)
426
Penal Reform International and the Essex Human Rights Centre
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