Ferguson and international law

It is unclear whether Ferguson police officer Darren Wilson will be investigated and prosecuted for his role in the fatal shooting of Michael Brown.  Ultimately, whether he will face criminal charges is a matter for Missouri criminal law to decide, though the case has also raised issues of federal civil rights law.  United States Attorney General Eric Holder, who President Barack Obama dispatched to Missouri, has announced that the federal government’s investigation will “supplement, rather than supplant, the inquiry by local authorities.”

This might suggest that events in Ferguson raise issues of domestic law alone.  But this is not the case, and not simply because the August 9 killing and the ensuing protests, both peaceful and violent, have captured the attention of the world media.

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According to international law, a state can be held responsible for an internationally wrongful act when it breaches an international legal obligation and when this breach can be attributed to the state.  International responsibility triggers certain consequences, such as an obligation for the state to make reparation.  Without a showing of breach and attribution, however, the state cannot be held responsible under international law. 

What body of international law applies to Ferguson?  Because the violence that has taken place in the St. Louis suburb does not rise to the level of an armed conflict, international human rights law alone would be the applicable law.  A key aspect of this body of law is the right to life. 

According to article 6(1) of the International Covenant on Civil and Political Rights (1966), “Every human being has the inherent right to life.  This right shall be protected by law.  No one shall be arbitrarily deprived of his life.” 

The United States is a party to the ICCPR; it has a legal duty to perform its obligations under it in good faith.  If it were found that the United States had violated article 6(1), then this would mean that it had committed an internationally wrongful act. 

But that international treaty law binds the United States to comply with the right to life does not mean that any use of force by it necessarily violates the ICCPR.  The test would be whether, on specific facts and circumstances, the state had arbitrarily deprived someone of his or her life. 

According to principle 9 of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), which is generally thought to reflect customary international law on point, law enforcement personnel are generally prohibited from using lethal force.  There are, however, a number of exceptions to this, namely in cases of “self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape.”  Lethal force can only be used, furthermore, when “strictly unavoidable in order to protect life.”

If it cannot reasonably be concluded that Officer Wilson was acting according to any of these exceptions when he engaged with Mr. Brown, then the United States would be responsible for a violation of international human rights law.  If, however, Officer Wilson acted according to one of these exceptions, then the United States would not be responsible for an internationally wrongful act.  In other words, it would not be the case that the United States had arbitrarily deprived Mr. Brown of his life. 

The same exceptions to principle 9 would apply when assessing the lawfulness of the state’s response to the nightly rioters in Missouri.  International human rights law frowns on the use of force by the state and enshrines a right to "freedom of expression" in article 19 of the ICCPR that is subject to "special duties and responsibilities," but in exceptional circumstances and when no other option reasonably presents itself, it would not necessarily be unlawful for the state to use force, proportionately. 

With “facts” being bandied about in the media as to precisely what happened on August 9 and in the days since, it seems premature to reach any conclusive judgments of international law on these issues.  There may come a time, however, when the matter is adjudicated not in the court of public opinion but, rather, in a court of law. 

Until that time, one would do well to heed Attorney General Holder’s counsel in a recent opinion piece in the St. Louis Post-Dispatch.  Referring to the violent protestors in Ferguson, he noted that “they seriously undermine, rather than advance, the cause of justice.  And they interrupt the deeper conversation that the legitimate demonstrators are trying to advance.” 

It does not take an international lawyer to be persuaded by the wisdom of this, for the sake of both peace and justice.

Barnidge, Ph.D., is lecturer and coordinator of International Relations at Webster University in St. Louis, Missouri. 

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