Using Guarantees of Non-Repetition to (Re)Frame Police Reforms

Brianne McGonigle Leyh

(The below blog is based on a draft article presented at the conference ‘Guarantees of Non-Recurrence: Transformative Police Reform’ on 5 November 2018 in Utrecht, the Netherlands)

Countries around the world grapple with how to address excessive police violence that violates human rights. For decades, scholars and practitioners have stressed the importance of establishing better relationships between police and the communities they serve and have adopted various ways to bring about real police reform that fosters relationships of trust. Community policing, democratic policing, and problem-oriented policing are some of the ways in which police have sought to make this change. At the international level, Security Sector Reform (SSR) is the umbrella term used to describe reform programmes adopted in States where the security sector (namely the military, police, gendarmes, and militias) has become a source of insecurity. The current view of SSR is that it must be a transformative process built upon human security and democratic governance. Human security demands that the interests of the individual, rather than the State, should dictate security policy (Ball 2010). Democratic governance requires respect for human rights, rule of law and adherence to principles such as inclusiveness, transparency and accountability (OECD DAC 2005). The transformation of the security system requires all of relevant actors (police, politicians and civil society) to work together. Yet, whether in Ferguson, USA, Paris, France or Nairobi, Kenya, the gaps between the idealistic rhetoric and harsh realities of police/security practice are significant. As noted by Ball and Hendrickson, much of the work concerning police reform is ‘misleadingly optimistic about the prospects for change’ (p. 104). The consensus among scholars and practitioners is that SSR, and police reform in particular, has been extremely difficult to implement in large part because of mistrust, lack of accountability, and susceptibility to corruption. Given the slow progress on police reform initiatives, it may be useful to look to distinct but relevant fields to (re)frame police reforms. Guarantees of non-repetition (or non-recurrence as it is also referred to) from the post-conflict peacebuilding field offer a normative institutional policy framework built around human rights standards and State responsibility that could potentially shift the rhetoric to focus on State obligations that are context-driven. The language of and programming falling under guarantees of non-repetition could prove useful when addressing police reform; noting, however, that the success of any reform policy is ‘directly proportional’ to the State and communities’ enthusiasm for it (p. 35).

Guarantees of non-repetition were first referred to in a 1993 report on restitution, compensation and rehabilitation for victims of gross violations of human rights and were thus conceptualised under reparations. Under the right to a remedy, States have obligations to provide adequate, effective and prompt reparation to victims for serious violations of human rights. This early study stated that measures aimed at preventing the recurrence of violations should include: (i) ensuring effective civilian control of military and security forces; (ii) restricting the jurisdiction of military tribunals; (iii) strengthening the independence of the judiciary; (iv) protecting the legal profession and human rights workers; and (v) providing human rights training to all sectors of society, in particular to military and security forces and to law enforcement officials. There was, from the beginning, a strong emphasis on linking guarantees of non-repetition and SSR.

The 1993 study laid the early foundations for the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. This document similarly focuses on SSR but also takes on a broader focus by noting the need to promote human rights standards not only in law enforcement and security sectors but also in the media, industry and psychological and social services. In addition to providing trainings and human rights education, the Basic Principles stress the promotion and observance of codes of conduct and ethical norms for law enforcement and other sectors, as well as mechanisms for preventing and monitoring social conflicts and their resolutions.

The conceptualisation or categorisation of guarantees of non-repetition as a measure of reparations made sense to a certain extent because, in theory, it would allow a victim bringing a claim for a remedy to seek specific court-ordered actions aimed at preventing future violations. However, guarantees of non-repetition do not easily fit within a reparation framework as they are not focused on restoring a victim back to the position they were in prior to the violation (a basic principle of reparation) or on individual remedies. Rather, they are about State responsibility for acknowledging past wrongs and ensuring they are not repeated on society as a whole. Therefore, the concept of guarantees of non-repetition was also taken up within documents addressing State responsibility and State measures to combat impunity. By 2005, guarantees of non-repetition were also seen as their own separate pillar within transitional justice equal to truth, justice, and reparations. Whether as a sub-measure of reparations or a stand-alone obligation, guarantees of non-repetition serve a specific function within rule of law and transitional justice programming. They are concerned about addressing past wrongs as well as about preventing future violations. In this sense, they help reinforce trust and confidence between society and the State.

From the international documents mentioned above on remedy and reparations for serious human rights violations, State responsibility, and measures for combatting impunity, a number of things stand out concerning guarantees of non-repetition and SSR. First, there is an emphasis on the need to reform security structures to ensure that they are run by civilians. Second, there is an emphasis on trainings related to human rights in particular. Third, there is an emphasis on establishing and enforcing a code of conduct and ethical behaviour. Finally, there is an emphasis on the need to monitor social conflicts and their resolutions. And while these international legal norms found in the documents referring to guarantees of non-repetition do not go into detail about the precise ways in which States should reform their security and police services (because all strategies should be context specific), they do establish a useful, preliminary framework to inform SSR reforms.

The value of a guarantees of non-repetition frame to approach police reform centers on its human rights and State obligation foundations. This linkage with past human rights violations and broader State obligations can bring about more context-tailored strategies that address underlying causes of violence and focus on accountability. Boiled down to its most basic tenant, international human rights law ensures individuals have rights and States have duties or obligations. These duties require States to respect, protect, and fulfil human rights obligations. The obligation to respect requires States to refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect means that States must protect individuals and groups against human rights abuses by third parties. The obligation to fulfil entails States taking positive action to facilitate the enjoyment of basic human rights. The obligation to prevent future violations of human rights, including police-perpetrated or police-supported violence, is not only reinforced by the duty to respect, protect and fulfil human rights, but also the specific duty to make reparation for the violations that occurred previously (it is here where the two conceptualisations of guarantees of non-repetition reinforce one another).

Adopting guarantees of non-repetition that are underpinned with a human rights-based approach to police reform would require States to view themselves as the principal duty-bearer. A rights-based approach considers the full range of human rights, including civil and political as well as economic, social and cultural rights, so that individual rights can be enjoyed by all. Such an approach requires States, when adopting police reform policies, to have an understanding about which groups in society may face discrimination or be in vulnerable situations, and how they can better respond to their needs. It means that police, community leaders, politicians, and others need to better grasp intersectional identities and relationships, which better reflect the different layers of discrimination affecting individuals and communities.

Human rights also require States to adopt a duty of due diligence. In the context of police reform, when States have duties of due diligence it places on them obligations of conduct requiring them to address specific risk factors associated with police violence and victimisation. The main elements of a due diligence framework within human rights law, include the 5 P’s: Prevent, Protect, Prosecute, Punish, Provision of Redress. This framework reflects and reinforces the preventive and reparative aspects of guarantees of non-repetition as well as the human rights obligations to protect, investigate, prosecute, and hold accountable those who violate human rights. Due diligence conduct that is linked with guarantees of non-repetition in the context of police reform may include  collecting, analysing, and understanding patterns of abuses that either occurred in the past or are ongoing (Sharp 2015). Linking reforms to the specific acts of violence is important in order to take measures to ensure their prevention. Moreover, requiring that authorities analyse and understand the patterns of violence, including the root causes, could help address more structural factors contributing to harm. It will also provide further opportunities for interacting with civil society actors that want to collect and share information on communities and the concerns they face. While there are no one-size-fits-all solutions, giving States a great deal of leeway in deciding on what action to take in a particular context, this framework provides for clear actions that a State should take (the 5 Ps), which it must then report upon and justify at the international level.

However, the fact is that many States prefer the easier (and more militarized) ‘train and equip’ paradigm than a more complex and costly holistic approach that focuses on human rights norms and State responsibility (Sharp 2015). The easier approach is pragmatic and in many situations makes sense given the tense security situations in States grappling with police violence. Nevertheless, the shorter-term, fast-results approach, which does not bring in human rights or rest on notions of State responsibility, does not seem to working to bring about real change. Perhaps it is time to reframe and reconstitute police reform using the framework of guarantees of non-repetition.

Nicole Ball, The evolution of the security sector reform agenda, in M. Sedra, ed., The future of security sector reform, The Center for International Governance Innovation (2010).

Clifford Geertz, The Interpretation of Culture, Basic Books Publishers (1973).

OECD DAC, Security system reform and governance, DAC Guidelines and Reference Series, Paris OECD (2005).

Dustin Sharp, ‘Security Sector Reform for Human Security: The Role of International Law and Transitional Justice in Shaping More Effective Policy and Practice’, in Matthew Saul and James A. Sweeney, eds., International Law and Post-Conflict Reconstruction Policy, Routledge (2015).