20 May, 2022
by Sam Biden, Global Leadership Fellow
Since early April 2022, a new wave of protests have emerged to combat increasing economic instability as well as fuel shortages and consistent power cuts. The economic crisis has been consistently developing since 2009, the conclusion of the Sri Lankan civil war. After the civil war, Sri Lanka focused far more on domestic markets rather than increasing their foreign trade. This has resulted in the State importing $3b a year more than it exports, a dramatic trade deficit. Sri Lankan foreign currency reserves have plummeted since 2019. They initially has over $7.6b in reserve, but as of 2020 this had shrunk to $1.93b. Additionally, Finance Minister Ali Sabry said many of these assets were actually unusable, meaning Sri Lanka only had around $50m at its disposal. This economic disparity has had a dramatic effect on living costs for Sri Lankans. Food prices are 30% higher than ever before and the cost of living is far greater than the average income.
Over this period, several key events have worsened the situation. On April 1, a state of emergency was called as a response to the protests, this included a 36-hour nationwide curfew. On April 5 Ali Sabry resigned only one day after his appointment which caused the current President, Mahinda Rajapaksa, to lose his parliamentary majority. On April 9, thousands stormed the Presidential office as they demanded President Rajapaksa resign. Nine days later a new government would form which replaced many of the Rajapaksa’s family members. The next day, a protestor would be killed during a peaceful protest. Weeks would pass but on May 9 what has been described as a ‘day of violence’ would emerge.
The new government sent a plethora of troops onto the streets to combat the protests as a response to several deaths between anti-government demonstrators and pro-government demonstrators. Demonstrators set several buildings tied to President Rajapaksa alight, alongside the homes of other pro-Rajapaksa politicians. Two ruling politicians would then kill three demonstrators in separate instances. One such politician shot two anti-government protestors, one suffered fatal injuries while the other survived. The other politician shot and killed two protestors. The next day, a ‘shoot to kill’ order was given to government forces regarding anyone seen ‘causing harm to life’. As a result of this sudden escalation in violence, President Rajapaksa would resign
Three Principles of ‘Use of Force’
The use of force is split into three categories; necessity, proportionality and due precaution. When a state considers using force in any domestic means, whether combating protestors or chasing criminals, they must do so in a manner consistent with international law.
Necessity dictates that the use of force should always be necessary in all circumstances. This has been expressed as law enforcement using force when it is only ‘strictly necessary’. There are three tests to the principle of necessity. First, a predominantly non-violent method should be deployed. This can involve using persuasion, negotiation and mediation as alternatives to deploying force. Additionally, in the event where force seems like the only option, it is commonly asserted that the law enforcement officers who feel they have no choice but to use force should wait for backup. Second, each use of force regardless of the nature or extent of this force, must be for a legitimate purpose. For example, the pursuit of violence against protestors because they are of the rival political viewpoint would not constitute a legitimate purpose. This concept is deepened with the acknowledgement that law enforcement may only use this force to an extent required to perform their duty. For example, if their duty is to control a protest in such a way that it does not become violent, then deploying violence as a method of control would be beyond their duty. Additionally, deploying the use of lethal force (such as firearms) to disperse a peaceful yet unauthorized protest would be beyond their duty as well. Third, the most crucial element asserts that when force is deployed, no more than the minimum amount of force shall be used. The examples above relate to this test in the same manner in such that the deployment of lethal force is not a minimum level of force. This is due to other forms of non-lethal control methods such as rubber bullets, deployment of tear gas and tazers, if absolutely necessary. Furthermore, even when law enforcement is confronted with violence, the preferred control method should be detainment and arrest first, not the deployment of non-lethal or lethal force.
Article 3 of the 1979 Code of Conduct refers to proportionality as the deployment of force in such a way that it is proportionate to obtaining a legitimate objective. Proportionality acts as the second principle of the three and can only be engaged once the necessity test is met but when acting in accordance with this necessity may render necessary force unlawful. An unavoidable outcome can trigger the principle of proportionality rather than necessity. For example, if a law enforcement officer is chasing a protestor who assaulted another protestor with a knife, if this officer can only stop the offenders escape with lethal force, then the principle of necessity is overridden and proportionality is engaged instead. This aids the Sri Lankan position where they can claim, albeit not legitimately, that they were acting proportionally to the protest. However, there is no indication that major violence that warrants lethal, yet proportionate force has occurred, so their argument would be obsolete.
3. Due Precaution
Due precaution is the precursor to both necessity and proportionality. Due precaution can be taken in many different forms but is most common in planned responses to unexpected circumstances. For example, a plan to handle protests could be agreed beforehand. This could include; what forces to be deployed, how lethal/non-lethal force is to be used, negotiation tactics to mitigate the threat level and how to disperse the protests. These methods must also mitigate the use of lethal force to situations that are unavoidable as well as minimize the damage, injury and loss of human life. The Special Rapporteur on extrajudicial, summary or arbitrary executions expanded upon this concept. He explained how in order to save lives, all precautions must be ‘taken upstream’ and ensure that all possible steps have been taken to ensure damage containment.
With the three principles in mind, Sri Lankan law enforcement has failed to adhere to all three. Regarding necessity and proportionality, the use of lethal force as what appears to be a first port of call fails to satisfy either principle. Alongside this, the requirement for ‘non-violent’ methods and mitigation to occur first, unless proportionality calls for immediate action, has not been satisfied. There also appears to be no overarching plan for handling protests in the State, failing one element of the due precaution principle. The discriminate and fatal targeting of protestors was not a result of a carefully articulated countermeasure taken against the protestors but appeared to be instinctive and reactive.
Deploying Live Firearms
The use of live firearms is a hot topic regarding necessity and proportionality. One can see how deploying live rounds must be seen as an absolute last resort. Even then, the principle of proportionality limits their use to extreme circumstances only, often being this absolute last resort scenario. With these deployments, two situations arise; using firearms to ‘stop’ someone and using them to ‘kill’ someone.
1. Shooting to ‘stop’
Commentary on Article 3 of the 1979 Code of Conduct, which limits the use of force to necessary circumstances only, contains strict restrictions against firearms. Generally, every effort must be made to exclude firearms from being deployed. The only exception is when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. This relates back to our offender chasing example made prior. According to this commentary, the deployment of firearms in that circumstance is certainly lawful if the offender is putting lives or has put lives at risk.
These provisions were partially revised by Principle 9 of the 1990 Code of Conduct. Principle 9 states that law enforcement shall not use firearms against anyone except; in self-defense, the defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a serious crime including a grave threat to life, to arrest a person presenting such danger, to prevent their escape and only when all other methods have been exhausted. These scenarios are all predicated on the deployment of firearms to ‘stop’ an offender from escaping or harming the public, it is not about ending civilian life.
The four exceptions mentioned above do not echo with the current circumstances. At no point is there any evidence that any of the four scenarios had occurred during the protests in Sri Lanka. Because of this, not only have Sri Lankan law enforcement failed to accede to the principles of proportionality, necessity and due precaution but also the 1979 Code of Conduct guidelines and their 1990 revisions.
2. Shooting to ‘kill’
Shooting to kill has a higher and more specific threshold of application given the intent of the force is to cause fatalities. With this in mind, commentary has identified two situations in which this shooting to kill can be lawful. First, honest belief a suspect is about to pull the trigger against an officer and second that a suspect is about to detonate a bomb. This duality is not extensive nor complete so there are other instances where an imminent threat of death arises albeit based on the same logic.
With little consideration, Sri Lankan law enforcement used lethal force, with the intent to kill, not stop. Therefore, they have not only violated the provisions relative to stopping criminal activity but also violated the strict test governing when they can deploy lethal force.
3. Protest Relevance
Protests, particularly ones where dissent towards the government is involved are of heightened importance to the State in terms of controlling them. Protests have a wide array of international protections including freedom of association and assembly. Notable examples include; Article 21-22 ICCPR, Article 17/20 UDHR and Principle 12 of the 1990 Code of Conduct.
However, there are some legal nuances regarding Principle 12. It states everyone is entitled to participate in ‘lawful’ and ‘peaceful’ assemblies. This lawful nature relates to recognition under domestic law only, not international law. Therefore, in such cases where law enforcement have approved the protest or assembly they task themselves with the facilitation of the event even if it is one of dissent. Furthermore, this means law enforcement must have training to carry out this duty. Skills such as negotiations abilities, effective communication and an ability to mediate are all part of the standard-setting for ensuring controlled protests. This argument appears to sway in Sri Lanka’s favor such that if they did not approve the protest then they can legally disperse it through proportionate and necessary force or by communication. However, immediate responses to politically motivated assemblies cannot rely on immediate dispersion of the protests, with or without force, if no illegal conduct has occurred. Sri Lanka broke up these protests regardless, not by using communication, but sheer violence. This kind of reaction has been noted as a violation of freedom of assembly in international jurisprudence.
There is little evidence to support any hypothesis that Sri Lanka, in this instance, used widespread and systemic, targeted and unlawful force. There is evidence to support the claim that Sri Lankan officials and law enforcement engaged in the fatal shootings of at least 5 people. Despite their international obligations to approach the use of lethal force with due caution and care, Sri Lanka deployed lethal force without adhering to any of the provisions that govern them. Additionally, the use of this lethal force was not pursued considering a legitimate objective, nor was there a security threat significant enough to justify deploying lethal force in the first place.
In the upcoming months we can expect further protests off the back of the economic crisis and now revolt for the murder of civilians. If Sri Lanka wants to contain this situation in an internationally compatible manner, they must do the following:
- Draft and implement a plan that allows for communication between future protestors and law enforcement. This communication shall be independent, impartial and free from violence.
- Draft a Code of Practice that specifies in what exact circumstances lethal force can be deployed. These circumstances should echo the provisions mentioned in this article.
- Ensure in circumstances of lethal force deployment that distinction between shooting to ‘kill’ and shooting to ‘stop’ be made prior to deployment.
- Draft a public government document that admits failure to adhere to the principles of proportionality, necessity and due caution. This shall accompany the drafted Code of Practice.
Image: Anti-government protest in Sri Lanka on April 13, 2022 in front of the Presidential Secretariat (Source: AntanO via CC BY-SA 4.0)