by On May 25, America watched as Minneapolis police officer Derek Chauvin murdered George Floyd. It was an act so egregious even staunch supporters of American policing couldn’t look at the video and defend the actions. The man had knelt emotionless on George Floyd’s neck for eight minutes and 46 seconds. It was brutal, and against what most Americans would see as legitimate use of force by a police officer.
The violent act not only ended George Floyd’s life, it opened the floodgates in America. In its wake, protests broke out across the country calling for an end to police brutality. In the streets, protesters were met with even more police brutality. Police shot rubber bullets, used tear gas and pepper spray indiscriminately, attacked journalists, and routinely endangered the lives of otherwise peaceful protesters. We witnessed protesters lose their eyes to rubber bullets and tear gas canisters, people shot in the face by “non-lethal” projectiles, hit by police batons and even cars. What we saw play out in front of news cameras during the protests was shocking to some, but for many it was expected. This is the violence police have long impacted on Americans of color and Americans in poor communities who are policed in ways wealthy white Americans simply are not.
What we saw play out in front of news cameras during the protests was shocking to some, but for many it was expected.
While many across the country would like to believe the myth that this is just a problem of “a few bad apples,” America’s policing problem is far deeper than the sins of a few. It has reached a level where international bodies have felt compelled to respond. In the face of the violent police response to protests, multiple international human rights organizations issued atrocity alerts for the United States. On June 3, the Global Centre for the Responsibility to Protect (GCR2P) issued an atrocity alert noting that, “in addition to potentially violating the US Constitution, the overly violent response to peaceful protests by US security forces contravenes numerous international laws and standards that protect human rights, including the right to peaceful assembly and association, and freedom of opinion and expression.” Crisis Group followed the next day with its alert, showing extreme concern for the framing of the discussion by U.S. leaders and highlighting, “a growing inclination among some prominent elected and security officials to frame the civil unrest in the language of armed conflict.”
A constant theme of the many alerts issued for the U.S. was the concern that U.S. police were acting outside the parameters of international human rights law; that what we have in America are not simply illegal actions of individual police officers, but a system of policing that was not built in line with international human rights law. Further, that this system is built upon and tends toward systemic racism, regularly endangering the lives of people of color in America.
The Four Principles of the Use of Force
There are four main principles upon which international human rights law bases decisions on the use of force in policing: legality, necessity, proportionality, and accountability. In order for use of force to be justified, it must fulfill all four of these principles, centering the decision on upholding the human rights of the civilian involved.
Legality: When we talk about legality, this calls for cities and states to not only have their own laws about use of force, but for those laws to be in line with international human rights law. According to the International Committee of the Red Cross (ICRC), “a State may not invoke its constitution or other national laws as reasons for not fulfilling its obligations under international law.” Further, police have a duty to respect, protect and fulfill the human rights of citizens without any form of discrimination. America struggles with this on a national level, but even state by state it is problematic. For example, Ohio does not even have a law on the books that deals with use of force by police. While other states are doing better by comparison, according to a recent study by the University of Chicago, not a single U.S. state has a use of force law that meets the standards of international human rights laws on the use of force.
One important shift in the legality discussion in America would be to focus on what police “should” do rather than what they “can” do in order to uphold the human rights of those they are meant to serve and protect. In other words, are we holding them to the minimum standard of legality or are we creating laws that encourage them to act morally and in a way that upholds the rights of citizens first and foremost? An example of creating laws focused on what police “should” do are international laws that stipulate how police treat protesters. According to international law, even if a protest itself is deemed unlawful, police must consider the safety and human rights of the protesters before acting. As the ICRC notes, “where assemblies are considered unlawful but are taking place in a peaceful manner, law enforcement officials should refrain from actions, e.g. dispersal of the assemblies, if such actions are likely to lead to an unnecessary escalation of the situation, which may involve a high risk of injury, loss of life and damage to property.” We have seen continual failure on the part of American police to take this under consideration. As a result, Americans have lost eyes, broken limbs, and been subject to chemical weapons in the midst of a global pandemic that specifically targets the lungs.
Necessity: Under international law, necessity demands that use of force be used only when “absolutely necessary,” when all other options have been tried, and when not using force can lead to the death of the officer or a bystander. It must always be a last resort. Where this gets problematic in America is through guidelines that allow for officers to use lethal force when a subject is fleeing, when the subject doesn’t present immediate lethal harm, or when those guidelines use weak language like “reasonableness” rather than “absolute necessity.”
On a summer night in August 2019, Elijah McClain went out to pick up some iced teas from the market. Elijah was a young massage therapist, known to family and friends as a gentle soul, a vegetarian and an introvert. He spent his free time at the local animal shelter playing violin for the animals because he believed it soothed them. Yet on that night in August, he was killed by police in Aurora, Colorado. Someone had reported a “suspicious person” in the neighborhood. What followed is incomprehensible. Elijah was stopped by police, tackled, put in a carotid chokehold and then injected with ketamine. He went into cardiac arrest in the ambulance on the way to the hospital and never woke up again. His family took him off life support days later. Body camera footage of the encounter captures Elijah telling the police, “I was just going home. That’s my house right there. I’m an introvert. I’m just different. That’s all. I’m so sorry. I have no gun. I don’t do that stuff. I don’t do any fighting. Why are you attacking me? I don’t even kill flies. I don’t eat meat. I don’t judge people, I don’t judge people who do eat meat. Forgive me. All I was trying to do was become better. I will do it. I will do anything. Sacrifice my identity. I’ll do it. You are all phenomenal. You are beautiful, and I love you. Try to forgive me.”
Elijah’s story could unfortunately serve as an example of a failure to meet all four of the principles for use of force, but it is most clearly a violation of necessity. Elijah was not a threat or a danger to anyone around him, there was no “absolute necessity” to use force on him. Even in the weakest language of police guidelines, there was no “reasonableness” to the use of force. Further, no other options had been tried. Violence was the first resort, and it led directly to the death of an innocent young man. Elijah’s story is also, sadly, not rare in America.
Elijah’s story could unfortunately serve as an example of a failure to meet all four of the principles for use of force, but it is most clearly a violation of necessity.
Proportionality: What has been easiest to see in recent weeks is American police failing to live up to the requirement of proportionality. According to international law, use of force must always be proportionate to the danger. As the ICRC underscores, “in addition to being necessary, the use of force must always be proportionate to the threat the officer confronts and weighed against the fundamental human rights of the individual, including the rights to life and security of person.” The New York Times recently released a report on police response to a Black Lives Matter protest in Philadelphia. It was a peaceful protest, marching down the highway in the city. What unfolded next was a prime example of a lack of proportionality in use of force, in which the human rights and safety of citizens was not taken into consideration. The protesters were violently attacked, cornered, unable to safely disperse, and subject to round after round of chemical agents. This SWAT team response was in no way proportional to the peaceful protest at hand. And, in fact, what their response did was further endanger the lives of the protesters.
Accountability: In the University of Chicago study, researchers point out that the place where U.S. use of force policies fail on an almost universal level is in accountability. Within the international rules and standards of policing, there must be systems in place to ensure accountability within the police department. This includes both internal and external systems of reporting both use of force, specifically instances where citizens are injured or killed by police officers. Additionally, there should be external systems in place for dealing with misconduct. Only two of America’s largest police forces — Chicago and Los Angeles — have mandatory external reporting for all uses of lethal force. Many cities have only internal reporting, and often that information is never made public.
Recently in New York City, the legislature voted to repeal 50-a. What this repeal means is that police disciplinary records will now be made public. This has been an ongoing battle in the city, as activists have pushed for more transparency from the police department. It is seen as a huge accomplishment for grassroots activists, but there has been great backlash from the police unions in the city. On the day it was repealed, New York Governor Andrew Cuomo also banned chokeholds and put the Attorney General in charge of prosecuting cases where police kill civilians. In response, the police unions held a press conference and railed against the changes, with union bosses like NY PBA President Mike O’Meara shouting, “stop treating us like animals and thugs and start treating us with some respect.” Insinuating that somehow creating accountability for police is equivalent to treating them like animals.
Responses like this from police unions make it hard to see a way forward on accountability in America, but it is crucial that citizens push for it. Without accountability and transparency, there will be continued violence and a continued lack of trust between police and the communities they are meant to serve.
Civil Rights are Human Rights
In the face of police forces that cannot meet the basic minimum standards for human rights, victims of police violence have begun to look outside the structures of the U.S. legal system for support. Families of victims of police violence, such as Breonna Taylor, George Floyd, Mike Brown, have called on the United Nations Human Rights Council to convene a special session to begin an independent inquiry into police violence and racial discrimination in the United States. As Jamil Dakwar of the ACLU explained, “it is time the United States face the same scrutiny and judgement it is quick to pass on to other countries. This accountability appeal to the United Nations follows the legacy of Black leaders such as W.E.B. Du Bois, Martin Luther King, Jr., and Malcolm X who believed in internationalizing the struggle for human rights and racial justice in the United States.”
Dakwar is harkening back to Malcolm X who asked in his autobiography, “how is the black man going to get ‘civil rights’ before first he wins his human rights? If the American black man will start thinking about his human rights, and then start thinking of himself as part of one of the world’s great peoples, he will see he has a case for the United Nations.”
On June 20, the UN Human Rights Council adopted a draft resolution calling on Michelle Bachelet, the UN’s top human rights official, to “prepare a report on systemic racism, violations of international human rights law against Africans and people of African descent by law enforcement agencies, especially those incidents that resulted in the death of George Floyd and other Africans and of people of African descent.” Further, the resolution calls on Bachelet, “to examine government responses to….peaceful protests, including the alleged use of excessive force against protesters, bystanders and journalists.”
The failure of the U.S. to reform its policing system, bringing it not only in line with international standards, but taking the time to truly deal with its problematic past, has left us here. A system built on the oppression of people of color cannot simply deny that past, but must actively work to create a new future. Until that happens, we will continue to see the international community pushing for us to make those changes.
Creating Humane Policing in America
While we are starting to see movement around the country toward reform, with bills in Congress, multiple cities and states have banned chokeholds, limited use of tear gas, and required intervention from officers if they see excessive use of force, the discussion remains limited. It seems focused on small changes when what America needs is large fundamental change. Is it important to ban chokeholds? Yes. Does that change the fact that among the police departments in the 20 largest cities in America, “not one met the minimum standards established by human rights law”? No.
Recently there have been encouraging reform movements such as #8CantWait, but these groups are still thinking too small. They ask too little of America. There are many localities that meet many of the standards set forth by #8CantWait, but are still below the international standards for policing. We have to think bigger, we have to ask more of our country. We have to demand more than the minimum standard.
Here are the facts right now: according to Amali Tower, founder and executive director of Climate Refugees, if Black Americans were to seek asylum in another country, they would have a legitimate case. “I can tell you what we all collectively witnessed in the murder of George Floyd, the subsequent numerous acts of police brutality in the ensuing protests and systematic state treatment of Black Americans could certainly qualify as a legitimate basis for most asylum claims.”
The United States must take seriously the fact that our use of force policies do not meet international standards, and we must work quickly to bring policies in line with international standards. As long as our rules and standards for policing in America fail to even meet the minimum basic requirements for human rights, how can we expect individual police to uphold the human rights of American citizens? This should be an imperative for police critics and supporters alike. We should want to be an example of high standards, to have a humane system of policing others might wish to replicate. We should want a system where there are no more Breonna Taylors or Tamir Rices; that we only know their names because they are beautiful people, not as a result of their tragic deaths.
Further, as a country, we must honestly address the history of policing in America, acknowledging that this system was built on the oppression of people of color. Until we are able to do this, there will continue to be a lack of trust between communities and the police who are sworn to serve and protect them. When there is no trust between police and the people they serve, it is more dangerous for everyone. The citizens are less safe, and the job of police is more dangerous.
America can and should do better than this. We should be able to address our past, and move toward a future where human rights are respected within our own borders. This is not a radical notion. It is simply a suggestion that we aim higher than the bare minimum.
Read the full University of Chicago study here.
Read the ICRC Rules and Standards for Policing here.
Contact your members of Congress to encourage them to take bold action on police reform: House and Senate.
Contact your local officials. Find out what your state and what your city are doing to push for real reforms. Send them the information they need to make real change.
Corrie Hulse 
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