Security Policing And The Right To Life Notes

Introduction:

• The policies relating to the use of lethal force can cover a wide variety of situations (routine police procedure vs. activities to prevent major terrorist attacks)

• If shoot to keep policies in the context of anti-terrorism are no longer to be considered exceptional, there are questions to be raised about how to legitimate such measures in a way that conforms to the RoL (rather than opting out of it)

The RoL: the argument is there needs to be a system of law in place in order to authorize use of lethal force

• Campbell argues that a legal positivist construction of the RoL can be used to generate a strategy that afford effective and democratically legitimate modes of protecting and promoting defensible conceptions of rights to life in the counter T context he proposes that a SoP is required in a system which holds the executive to account in terms of democratically enacted laws by courts whose duties are confined to applying specific laws to concrete situations defined in terms amenable to objective assessments by courts through evidence based DM = endorsing normative legal positivism and excluding HR’s constitutionalism

• In relation to defensible uses of lethal force for counter T purposes departing from those applicable to other spheres of policing, he argues this could be accommodating by limiting the applicability of uses of lethal force to periods of terrorism-defined states of emergency, whose authorization requires court approval based on positivist rule of law standards this provides a way for morally legitimate authorization of counter T use of lethal force which can be accommodated within a constitution of democratic ruled governance

• ***NOTE: link to Gross here are we within or outside of the law?

• Schmitt (Nazi philosopher): liberal states are undermined by the fact that liberal democratic states retain the power to suspend the constitution and rule by emergency powers highly discretionary shoot to kill policies involving powers not normally exercised in standard police practice could be an example of this sort of lawlessness

• On the other side of the debate is the argument that even a grave emergency cannot warrant the exercised of unlimited and legally unsupervised discretionary coercive power shoot to kill policies just like all official policies need to be subjected to a regime of legitimate law

• In response to Gross – proposal is undermined by failing to realize that it involves judicial constraint of executive action being bypassed at the very time it is most important

• Theory: prescriptive legal positivism – normative thrust is that there are major benefits to be derived from adopting an aspirational model of law; the focus is on formally good rules and a SoP

• Under this theory, there is no assumption that whatever is democratically decided is morally right – it generates a prima facie political obligation independently of the content of the decision in question

Preventing terrorist carnage

• Are the rules of engagement/police guidelines for the use of firearms relating to STK capable of being expressed in terms that can be clear guides can be useful in the moment of action and objectively adjudicated after the event?

• Broad principles might be clear (eg. SD) but there are particular needs for clarity/specificity in rules that are to be applied in the heat of dramatic events – if we rely on concepts such as reasonableness or proportionality to set the standards this is a drafting failure

• On the other hand, the rules will need to be followed in dramatic and fast moving circumstances but we shouldn’t forget we are talking about personnel who should have been trained thoroughly in this area

• The rules in the AT context are likely to require significantly different conduct because of the potential extent of harm to third parties, the fear and alarm caused by terrorism to entire populations, the suffering caused by the economic damage that results from terrorist acts, the extended indiscriminatory aggressive motivation of terrorism, the complexity of the calculations of risks involved in taking pre-emptive action, the evident nature and extent of the limitations to civil liberties in counter T tactics

• The De Menezes shooting supports the argument that post 9/11 there is a different style of policing emerging

• Positivist responses to these differences?

• Careful articulation of a distinct set of rules – making allowances for greater risks involved and difficulty of knowing whether or not the target persons are a major danger

• EG. There might be less reason to give as much priority to police safety, who might be expected to take greater risks with their lives in this context

• In this case, we might reasonably expect to see more tolerance of false positives, more acceptance of superior orders and a looser definition of...