Page 30 - University of Pretoria RESEARCH REVIEW 2018

Legal restraints on the use of force Stuart Maslen, Centre for Human Rights
A key component in UP’s Freedom from Violence
in Africa programme within the Faculty of Law is clarification of how international law restricts the use of force. This is particularly so when an agent of the State is pulling the trigger.
Maslen and co-researchers at UP and Oxford University, set out in 2018 to gather and analyse the law in all 197 states in the world. The result is the Law on Police Use of Force Worldwide website (policinglaw.info), a global repository for domestic rules governing police use of force. Many rules are the permissive vestiges
of colonialism; disappointingly few truly comply with international law. A major reform effort is needed if the police are to be held accountable for their actions and citizens are to be protected.
More complex is the legality of the use of force during armed conflict, particularly when that occurs between the State and an armed opposition group. Protecting civilians demands analysis of several branches of international law – human rights, humanitarian law, disarmament
(as certain weapons can never be possessed much less used), and international criminal law.
In a book published in 2018, Hague Law Interpreted: The Conduct of Hostilities under the Law of Armed Conflict (Hart, Oxford) Maslen offers a detailed assessment of the laws regulating combat during armed conflict, exploring the gap between interpretation of the rules and their application in practice. Twenty years after the UN Security Council first tackled the issue, research and teaching is now focusing on how better to protect civilians.
Stuart Maslen, an honorary professor of international law at the Centre for Human Rights, teaches on the programme and supervises doctoral students, focusing his research on the law of armed conflict, human rights, disarmament, and counterterrorism.
He writes that the simplest case to analyse – in legal terms – is when a police officer shoots an individual in the line of duty. National rules are subject to international law, particularly human rights law but, in extreme cases, also international criminal law.
In ascertaining whether an officer’s actions were lawful, the right to life
will be especially important. Whether
a violation has occurred turns first
on whether the officer’s actions
were ‘arbitrary’ and thus unlawful.
This concerns compliance with core principles governing law enforcement, notably necessity and proportionality. These dictate that the force used must be the minimum necessary in the circumstances and also proportionate to achieving a legitimate law enforcement aim.
To see how these international rules are translated into domestic practice,
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