Dutch Taser weapons on agenda at United Nations

Right to bodily integrity

Traditionally, Privacy First has used a broad, human rights concept of the right to privacy. This includes the right to bodily integrity. In recent years, this right has come under increasing pressure: think, for example, of preventive searches on the streets, body scans at airports, fingerprints in passports, DNA databases, the new organ donation law, debates about compulsory vaccination, etc. Besides Article 8 of the European Convention on Human Rights, the right to bodily integrity in the Netherlands is protected separately by Article 11 of the Constitution. At the international level, the right to bodily integrity belongs to the category of human rights that enjoy the strongest protection, including the absolute prohibition of torture or torture.

UN Convention against Torture

Torture (or, if committed by officials: torture) belongs to the small category of absolute prohibitions in international law. Other examples within this category include 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 who is or has been guilty of torture or torture anywhere in the world should therefore be prosecuted or extradited. This includes officials, ministers, presidents and heads of state. The Netherlands has been a party to the convention regulating this worldwide since 1988: the UN Convention against Torture. Periodically, each State party is scrutinised by the supervisory treaty body in Geneva: the UN Committee against Torture. Rulings by this Committee constitute authoritative guidelines for compliance and interpretation of the treaty. This Tuesday and Wednesday, the Netherlands is again (as in 2013) "in turn": on Tuesday, the Netherlands will be challenged by Committee members on various issues, followed by responses from the Dutch government delegation on Wednesday. The Committee will then issue a series of critical recommendations ("Concluding Observations") to the Netherlands.

Taser weapons on UN agenda

In preparation for the Dutch session, the Dutch Lawyers Committee for Human Rights (NJCM) recently sent a so-called ''Shadow report' on the Netherlands to the Committee in Geneva. At the initiative of Privacy First, as in 2013, the issue of Taser (electric shock) weapons was emphatically raised here. Indeed, the Dutch government is soon threatening to give every Dutch police officer his or her own Taser weapon, it was revealed just last week in media coverage. To date, only the arrest teams of the Dutch police have been equipped with Taser weapons. That wider, general use of Taser weapons will lead to structural excesses is to be expected. In this context, all the US scandals involving Taser weapons in particular speak volumes. In Privacy First's view, the use of Taser weapons can easily lead to violations of the international ban on torture, cruel or inhuman treatment and the related right to bodily integrity. After all, Taser weapons lower the threshold of violence and leave hardly any external marks. At the same time, Taser weapons can cause serious physical and mental harm. This poses serious risks to the Dutch population, especially also to certain vulnerable groups. Our joint shadow report to the Committee therefore highlights these risks (see report, pp. 15-16).

Previous criticism from UN committee

Both the Dutch coalition of civil society organisations and Amnesty International asked the UN Committee to critically question the Dutch government on this issue and advise the Netherlands not to introduce Taser weapons for the entire Dutch police force. At the previous session of the UN Committee in 2013 Privacy First, among others, had also called for this. This led to the following at the time urgent advice From the Committee 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." (para 27)

Privacy First looks forward to another critical opinion from the Committee with confidence. See also our comments in the Telegraph and regional newspapers (via ANP).

Update 22 November 2018

Yesterday and the day before, the Dutch session at the UN Committee took place. Numerous topical issues were critically discussed, including Taser weapons. To the UN Committee, the representatives of Curaçao, Sint Maarten and Aruba emphatically stated that Taser weapons are not used there. This contrasted sharply with the representative of the Dutch government (Secretary-General Riedstra of the Dutch Ministry of Justice and Security) who barely touched on the subject, stating that the Dutch government will take a decision on the deployment of Taser weapons in 2019. Below are all the relevant audio clips:

Questions by Mr Hani on behalf of UN Committee, 20 November 2018:

{mp3}Hani_question1_20Nov2018{/mp3} (English simultaneous translation)

Reply by Mr Riedstra on behalf of the Netherlands:
{mp3}Riedstra_reply1_20Nov2018{/mp3}

New questions by Mr Hani on behalf of UN Committee, 21 November 2018:
{mp3}Hani_question2_21Nov2018{/mp3} (English simultaneous translation)

Reply by Mr Riedstra on behalf of the Netherlands:
{mp3}Riedstra_reply2_21Nov2018{/mp3}

See also the UN press release on the Dutch session in Geneva, the full video recording (day 1 and day 2) and the verbatim report (day 1 and day 2). The UN Committee is expected to issue critical Concluding Observations on the Netherlands within weeks.

Update 7 December 2018

Today, the UN Committee issued a set of guidelines (Concluding Observations) to the Dutch government enacted, including the urgent request not to introduce Taser weapons for the entire Dutch police force and to limit this to those cases where the use of a Taser weapon can be deemed strictly necessary and proportionate. The Committee also strongly warns against using Taser weapons on vulnerable persons. Moreover, the Committee expresses deep concern about the way Taser weapons have been used by the Dutch police so far.

The entire Committee report is here (pdf). Below is the section on Taser weapons (paras 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 this critical assessment and the Committee's principled stance. This also sets a strong precedent for other countries worldwide. Privacy First will ensure that the Dutch government complies with the Committee's guidelines.