Partly on the initiative of Privacy First, a special Committee of the United Nations will this week in Geneva look into the imminent adoption of Taser weapons among the entire Dutch police force. This adoption possibly contravenes the UN Convention against Torture.
Right to physical integrity
For Privacy First, the right to privacy has always been a broad human rights concept. This includes the right to physical integrity. In recent years, this right has come under increasing pressure, think of preventive frisking on the streets, body scans at airports, DNA databases, the new Organ Donation Act in the Netherlands, discussions about compulsory vaccinations, etc. The right to physical integrity is laid down not only in the European Convention on Human Rights, but is also protected by Article 11 of the Dutch Constitution. At an international level, this right is part of the category of human rights which have the strongest protection. The absolute prohibition of torture and other cruel, inhuman or degrading treatment falls in the same category.
UN Convention against Torture
In international law, torture is in the small category of absolute prohibitions. Other examples within this category are the prohibition of genocide, international aggression (illegal warfare), slavery, racial discrimination, apartheid and piracy. Violation of these norms is always and under all circumstances prohibited. Anyone anywhere in the world who is committing or has committed torture or other cruel, inhuman or degrading treatment or punishment should therefore be prosecuted and extradited. Public officials, ministers, presidents and Heads of State are no exception to this rule. Since 1988, the Netherlands is party to the convention in which this is laid down: the UN Convention against Torture. Every contracting party is periodically reviewed by the treaty monitoring body in Geneva: the UN Committee against Torture. Opinions delivered by this Committee provide authoritative guidance on the application and interpretation of the convention. On Tuesday and Wednesday this week, it will be the Netherlands’ turn to be reviewed (the last time was in 2013): on Tuesday the Netherlands will be questioned by the Committee’s members, after which the Dutch government delegation will provide its answers on Wednesday. Subsequently, the Committee will issue a series a recommendations (‘Concluding Observations’) to the Netherlands.
Taser weapons on the UN agenda
In preparation of the Dutch session and on behalf of a broad coalition of civil society organizations, the Dutch section of the International Commission of Jurists for Human Rights (Nederlands Juristen Comité voor de Mensenrechten, NJCM) has recently sent a so-called 'shadow report' about the Netherlands to the Committee in Geneva. On the initiative of Privacy First, the issue of Taser weapons was expressly put on the agenda, as was the case in 2013. The situation is such that the Dutch government aims to provide every Dutch police officer with his own Taser weapon, media reported only last week. Thus far, only special arrest teams are equipped with Taser weapons. The expectation is that the wider, more general deployment of Taser weapons will lead to structural excesses. In this respect, all scandals with Taser weapons, particularly those in the United States, speak for themselves. In Privacy First’s view, the use of Taser weapons can easily lead to violations of the international prohibition of torture or cruel or inhuman treatment and the associated right to physical integrity. Taser weapons lower the threshold for the use of violence and hardly leave behind any visible traces. By the same token, Taser weapons can cause serious physical and mental damage. This results in serious risks for the Dutch population and for certain vulnerable groups in particular. That’s why our joint shadow report to the Committee emphasizes these risks (see pages 15-16 of the report).
Previous criticism of the UN Committee
Both the Dutch coalition of civil society organizations as well as Amnesty International have requested the UN Committee to cross-examine the Dutch government on this issue and advise the Netherlands not to equip the entire police force with Taser weapons. This is what Privacy First and other parties had already pushed for during the previous session of the UN Committee in 2013. Back then, this led the Committee to issue the following urgent recommendations to the Netherlands:
“The Committee recommends to [the Netherlands], in accordance with articles 2 and 16 of [the Convention against Torture], to refrain from flat distribution and use of electrical discharge weapons by police officers. It also recommends adopting safeguards against misuse and providing proper training for the personnel to avoid excessive use of force. In addition, the Committee recommends that electrical discharge weapons should be used exclusively in extreme limited situations where there is a real and immediate threat to life or risk of serious injury, as a substitute for lethal weapons.” (paragraph 27).
Privacy First is confident the Committee will again come up with critical recommendations.
Update 22 November 2018: yesterday and the day before the Dutch session took place before the UN Committee. Numerous topical issues were critically examined, including Taser weapons. Representatives of Curaçao, Sint Maarten and Aruba emphatically declared that no Taser weapons are used on their islands. This contrasted sharply with the statements made by the representative of the Dutch government (Secretary General Siebe Riedstra of the Ministry of Justice and Security), who barely addressed the issue and merely remarked that the Dutch government will take a decision on the adoption of Taser weapons in 2019. Below are all the relevant audio clips:
Questions by Abdelwahab El Hani on behalf of the UN Committee, 20 November 2018:
(simultaneous interpretation into English)
Answer by Siebe Riedstra on behalf of the Netherlands:
New questions by Abdelwahab El Hani on behalf of the UN Committee, 21 November 2018:
(simultaneous interpretation into English)
Answer by Siebe Riedstra on behalf of the Netherlands:
See also the UN press release about the Dutch session in Geneva, the full video recording (day 1 and day 2) and the verbatim report of proceedings (day 1 and day 2). The UN Committee is expected to present its Concluding Observations about the Netherlands within a few weeks’ time.
Update 7 December 2018: today the UN Committee has issued a number of Concluding Observations to the Dutch government, urging the Netherlands not to equip the entire police force with Taser weapons and to limit their adoption to cases that can be deemed proportionate and strictly necessary. The Committee emphatically cautions against using Taser weapons against vulnerable people. Moreover, the Committee expresses serious concerns about the way Taser weapons have been used by the Dutch police thus far.The entire report by the Committee can be found HERE (pdf). Below is the part concerning Taser weapons (paragraph 42-43):
Electrical discharge weapons (tasers) and pepper spray
42. The Committee notes with concern that despite its previous recommendations against the routine distribution and use of electrical discharge weapons (tasers) by police officers, the State party conducted a pilot testing from February 2017 to February 2018 without clear instructions on their restrictive use. It is particularly concerned at information that during this pilot period, police officers used tasers in situations where there was no real and immediate threat to life or risk of serious injury, including in cases where targeted individuals were already in police custody. It is further concerned about reports of the frequent use of the so-called “stun mode” which is intended to merely inflict pain, and the incidents in which tasers were used against minors as well as persons with mental disabilities in healthcare settings. In addition, the Committee is concerned about information that the use of pepper spray is not regulated fully in line with principles of necessity and proportionality and that the new draft Instructions on the Use of Force is expected to further lower the threshold for using it and to permit its use against vulnerable persons including pregnant women and children (arts. 2, 11 and 16).
43. Recalling the Committee’s previous recommendations (CAT/C/NLD/CO/5-6, para. 27), the State party should:
(a) Refrain from routine distribution and use of electrical discharge weapons by police officers in their day-to-day policing, with a view to establishing a high threshold for their use and avoiding excessive use of force;
(b) Ensure that electrical discharge weapons are used exclusively in limited situations where there is a real and immediate threat to life or risk of serious injury, as a substitute for lethal weapons and by trained law enforcement officers only;
(c) Explicitly prohibit the use of electrical discharge weapons and pepper spray against vulnerable persons, including minors and pregnant women, and in healthcare settings, including mental health institutions, and especially prohibit the use of electrical discharge weapons in the custodial settings;
(d) Ensure that the instructions on the use of electrical discharge weapons and pepper spray emphasize the absolute prohibition of torture and the need to respect the principles of necessity and proportionality, fully in accordance with the Convention and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;
(e) Adopt safeguards against misuse of electrical discharge weapons and pepper spray and provide proper training and awareness programmes for the law enforcement personnel;
(f) Monitor and regularly review the use of electrical discharge weapons and pepper spray, and provide the Committee with this information.
Privacy First appreciates the critical opinion and the principled position of the Committee. Not least because it creates a strong precedent for other countries worldwide. Privacy First will ensure that the Dutch government will comply with the Committee’s observations.
At the end of this summer our colleagues from Bits of Freedom will once again be organizing the annual Big Brother Awards. Below are our nominations for the biggest Dutch privacy violations of the past year:
- Automatic Number Plate Recognition plans from Minister Opstelten
If it’s up to the Dutch Minister of Security and Justice, Ivo Opstelten, the travels of every motorist in the Netherlands will soon be stored in a police database for four weeks through automatic number plate recognition (ANPR) for criminal investigation and prosecution purposes. This means that, in the view of Mr. Opstelten, every motorist is a potential criminal. Privacy First deems this proposal absolutely disproportional and therefore in breach with the right to privacy as stipulated under Article 8 of the European Convention on Human Rights. In case Dutch Parliament accepts this legislative proposal, Privacy First will summon the
on account of unlawful legislation in violation with the right to privacy; see http://www.privacyfirst.eu/focus-areas/cctv/item/580-every-motorist-becomes-potential-suspect.html. Dutch State
- Proposal for hacking scheme from Minister Opstelten
A second miserable plan from Minister Ivo Opstelten is to authorize the Dutch police force to hack into your computer and to oblige citizens to decrypt their encrypted files for the police. In the view of Privacy First this plan, too, is entirely in breach with the right to privacy, since it’s unnecessary and disproportional. Moreover, the proposal contravenes with the ban on self-incrimination (nemo tenetur). The proposal will lay the basis for future abuse of power and forms a typical building block for a police State instead of a democratic constitutional State. For our main objections, see http://www.privacyfirst.eu/focus-areas/law-and-politics/item/599-privacy-first-objections-against-opstelten-hacking-scheme.html.
- License plate parking
As of late, in an ever greater number of Dutch cities (among which
) license plate parking is becoming compulsory. Privacy First stands up for the classical right of citizens to travel freely and anonymously in their own country. The right to park anonymously is a part of this. License plate parking clearly disregards these rights. Moreover, it leads to function creep in breach with the right to privacy. The prime example here is the already proven abuse of parking information of lease drivers by the Dutch tax authorities; see http://www.nrc.nl/nieuws/2013/07/29/privacywaakhond-het-servicehuis-parkeren-overtreedt-de-wet/ (in Dutch). Amsterdam
- Highway section controls
Section speed checks on Dutch highways make that the journeys of motorists are continuously being monitored. This forms a massive infringement of the right to privacy. Such an infringement requires a specific legal basis with guarantees against abuse. Moreover, function creep is just around the corner; this already becomes obvious from the current plans of Dutch Minister Opstelten to soon use all highway speed cameras for automatic number plate recognition (ANPR) for investigation and prosecution purposes of a whole range of criminal offences as well as the collection of outstanding fines, tax debts, etc.
Besides the ‘usual’ cameras in neighbourhoods, shops, stations, above highways etc., citizens are increasingly – and almost unnoticed – being spied upon by flying cameras: so-called drones. The government does this (mainly the police) and so are private parties, yet without any sufficient legislation. Because of this the privacy risks and the likelihood of an accident are enormous. Privacy First therefore pleas for a moratorium on the use of drones until proper national legislation is put in place. Furthermore, drones should only be allowed to be used by the government in exceptional cases, for instance in disaster situations or for the investigation of suspects of very serious crimes, and only in case no other adequate means can be deployed. For private parties a license system is to be introduced with strict supervision and enforcement. Moreover, every drone is to be equipped with a transponder that is publically cognizable.
- Police Taser weapons
In September 2012 it became known that Dutch Minister Opstelten was planning to equip the entire Dutch police force with Taser weapons. In the view of Privacy First, the use of Taser weapons can easily lead to violations of the international ban on torture and the related right to physical integrity (which is part of the right to privacy). Taser weapons lower the threshold for police violence and hardly leave behind any external scars. At the same time they can inflict serious physical damage and mental harm. In conjunction with the current lack of firearms training for Dutch police officers, this produces serious risks for the Dutch population. In May 2013 the Dutch government had to justify itself over Opstelten’s plans in front of the UN Committee against Torture in Geneva; see http://www.privacyfirst.eu/focus-areas/law-and-politics/item/595-dutch-taser-weapons-on-agenda-of-un-committee-against-torture.html. Nevertheless, for the moment Opstelten’s intentions seem to be unchanged...
- Electronic Health Record
In April 2011 the introduction of a Dutch national Electronic Health Record (Elektronisch Patiëntendossier, EPD) was unanimously binned by the Dutch Senate due to privacy objections and security risks. However, the national introduction of almost the same EPD was subsequently worked towards along a private route and this included the exchange of medical data through a National Switch Point (Landelijk Schakelpunt, LSP). This will by definition lead to 'function creep by design' instead of privacy by design. The digital ‘regional walls’ in and around the LSP will easily be circumvented or removed. Therefore the entire system can take on its old central form again at any given moment in the future, with all the privacy and security risks this entails. Furthermore, the current layout is characterized by generic instead of specific permission of the patient to share medical data with healthcare providers (and future third parties). This constitutes an imminent danger for the medical privacy of citizens as well as the professional confidentiality of medical specialists.
Since September 2012, Dutch Minister Ivo Opstelten has been planning to equip the entire Dutch police force with Taser weapons. At the request of the Privacy First Foundation, the Dutch government will have to answer some tough questions about this before the UN Committee against Torture.
One of the most important and most ratified human rights treaties in the world is the 1984 United Nations Convention against Torture. Under this Convention, torture is prohibited under all circumstances. Anyone who is guilty of torture anywhere in the world is to be prosecuted or extradited. This also applies to civil servants, ministers, presidents and heads of State. The Netherlands has been a party to the UN Convention against Torture since 1988. Periodically, every country that has ratified the Convention is examined by the supervisory treaty body in Geneva: the UN Committee against Torture (CAT). This upcoming Tuesday and Wednesday it's the Netherlands' turn to come under CAT's scrutiny: on Tuesday the Netherlands will be cross-examined by the Committee on various issues, after which the Dutch delegation will come up with answers on Wednesday. Subsequently, the Committee will make a number of critical recommendations (''Concluding Observations'') to the Netherlands.
In preparation of the Dutch session, the Privacy First Foundation, the Dutch National Human Rights Institute (College voor de Rechten van de Mens) and the Dutch section of the International Commission of Jurists (Nederlands Juristen Comité voor de Mensenrechten, NJCM) have recently sent so-called 'shadow reports' about the Netherlands to the Committee in Geneva. Both Privacy First and NJCM emphatically raised the issue of Taser weapons for the Dutch police. Privacy First did so through a special letter to the Committee: click HERE. In this letter Privacy First draws the Committee's attention to the intention of the Dutch Minister of Security and Justice Mr. Ivo Opstelten to soon supply every Dutch police officer with his/her own Taser weapon. (Currently 'only' the arrest teams of the Dutch police force are equipped with Taser weapons.) In the view of Privacy First, the use of Taser weapons can easily lead to a violation of the international ban on torture as well as the related right to physical integrity, which in turn is part of the right to privacy. Taser weapons lower the treshold for police violence and hardly leave behind any scars. At the same time Taser weapons can inflict serious physical damage and mental harm. In conjunction with the current lack of firearms training for Dutch police officers, this produces serious risks for the Dutch population. Therefore we have requested the Committee to critically examine the Netherlands about this and to advise against introducing Taser weapons for the entire Dutch police force. Last Friday, Privacy First was notified from Geneva that the UN Committee will indeed critically examine this issue. This week Privacy First will keep you up-to-date of the latest developments.
Update 13 May 2013, 23.00h: a livestream of the Dutch session can be viewed online HERE (Tuesday 10am-3pm, Wednesday 3pm).
Update 14 May 2013, 15.00h: Today the Dutch delegation in Geneva (under the chairmanship of the Dutch Permanent Representative to the UN) was critically questioned by the Committee on various issues, among which... Tasers. The Dutch answers will follow tomorrow afternoon at 15.00h. Below are the relevant parts both in text as well as in mp3:
Committee member Nora Sveaass (Norway): "I then want to bring the attention to something that I've been informed of, namely that the State [of the Netherlands] is planning on a pilot of using Taser weapons as a regular weapon within the police force. And the pilot is supposed to take place, I understand, the last half of this year, so it's probably just around the corner. This Committee has on many different occasions warned against the use of Tasers, both in special situations and especially as a regular weapon to all the police, as I understand the plans are. And there are a lot of reasons for this, I won't go into the detail, because these have been described both by this Committee and by a lot of others, because, first of all, health reasons, physical as well as psychological. So I would hope that you would rethink and perhaps change the decision of implementing a pilot and also doing it in practice."
Committee member Fernando Mariño Menéndez (Spain): "I'm also concerned by the decision that we've heard about to generalize the use of Tasers by all regular police officers, as just referred to by Mrs. Sveaass, that the Tasers will be used as an [armament] for standard use across the Kingdom of the Netherlands. That's our understanding, perhaps we're wrong, perhaps there is a special protocol governing the use of Tasers. Our position as a Committee is that Tasers shouldn't be used at all. If they are to be used, and this seems to be dangerous, then they need to be used in very specific cases and properly regulated. We'd like to know what's happening in the Kingdom of the Netherlands."
Update 14 May 2013, 16.45h: This afternoon Privacy First employee Vincent Böhre was interviewed about this topic on Dutch radio station FunX. You can listen to the entire interview (in Dutch) here:
Update 15 May 2013: This afternoon the Netherlands had the opportunity to answer the questions that were asked by the UN Committee yesterday. In the audio file below you can hear how the Dutch Permanent Representative to the UN in Geneva denies and downplays the Dutch plans concerning Taser weapons. For the Committee members this was no reason to tone down or withdraw their critical remarks made yesterday. Therefore, Privacy First expects the Committee to express sharp criticism on the Dutch Taser plans in its Concluding Observations that are soon to be issued. Tonight the Committee already published a press release about the Dutch session; click HERE.
Update 16 May 2013: An integral video registration of both session days of the UN Committee is online HERE. The Concluding Observations of the Committee about the Netherlands will follow on Friday afternoon 31 May 2013 (June 3rd at the latest), Privacy First was told by telephone from Geneva today.
Update 22 May 2013: as a result of the Dutch session before the UN Committee last week, Dutch opposition party D66 today has posed a series of critical Parliamentary questions to Minister Opstelten; click HERE (in Dutch).
Update 31 May 2013: As predicted earlier by Privacy First and as reported tonight by Dutch television news program EenVandaag, the UN Committee against Torture has issued a negative statement today about Minister Opstelten's plans to equip the entire Dutch police force with Taser weapons:
"The Committee is concerned about the pilot plan to be reportedly launched to distribute electrical discharge weapons to the entire Dutch police force, without due safeguards against misuse and proper training for the personnel. The Committee is concerned that this may lead to excessive use of force (arts. 2, 11 and 16). The Committee recommends to the State party, in accordance with articles 2 and 16 of the Convention, to refrain from flat distribution and use of electrical discharge weapons by police officers. It also recommends adopting safeguards against misuse and providing proper training for the personnel to avoid excessive use of force. In addition, the Committee recommends that electrical discharge weapons should be used exclusively in extreme limited situations where there is a real and immediate threat to life or risk of serious injury, as a substitute for lethal weapons." (para. 27. Click HERE for the entire document.)
The Privacy First Foundation hopes that this negative stance by the UN Committee will lead to a reconsideration and withdrawal of the Dutch plans to equip every Dutch police officer with a Taser weapon. Privacy First also hopes that the announced pilot will not be executed.