More than a century ago, sociologist and political economist Max Weber wrote that the State establishes a “monopoly on violence” by claiming the legitimate use of force—a theory that today underpins the legitimacy of police and military in using force to protect individuals from threats like crime or foreign invasion.
But what happens when these apparatuses of the State themselves hurt or even kill people? While the police and military are allowed to use force and weapons, there are strict restrictions on their use. These restrictions should be detailed in clear police protocols, obligations to resort to force only if unavoidable. The murder of George Floyd in Minneapolis, USA, the killing of dozens of protestors in Colombia last April, and innumerable instances of police and military violence around the world prompt the question: Who polices the police?
There are many factors that inform how accountable the police and military are to the public. There is, to be sure, a wide spectrum between countries led by democratically elected governments and authoritarian regimes, even though abuses occur in a variety of jurisdictions. But one aspect of police and military accountability that has interested us in particular is that of independent investigative agencies (IIAs)—and specialized units within prosecution services—that are tasked with conducting investigations into alleged crimes committed by the police and the military, and how effective they are.
With police granted the powers to use force, many jurisdictions have seen overarching immunities from criminal liability. Due to this, investigating and prosecuting cases of alleged abuse by police is a difficult task. However, there is precedent for doing so—something that IIAs have helped establish around the world. That’s part of the reason why IIAs are often launched in the wake of particularly horrific examples of State violence or at a time of great public reckoning. Kenya’s Independent Policing Authority was established after an official inquiry into violence after the 2007 general elections; South Africa’s came in response to a history of apartheid and widespread police abuses. With its recent country-wide protests, Colombia may be confronted with such a demand.
The question is: what makes independent agencies that investigate the police most effective around the world?
Investigators from IIAs work to build a case for criminal prosecution when police and the military act unlawfully, just as police would do in a regular criminal case. They act as a lead investigative agency and collect evidence, for example, in cases of police-involved shootings. They process crime scenes, interview victims, and order forensic analysis of evidence.
In a new research entitled “Who Polices the Police? The Role of Independent Agencies in Criminal Investigations of State Agents”, we have examined 15 different IIAs and prosecutorial units in countries from Argentina to Kenya. No two are alike, but we were driven by the question of what makes IIAs most effective around the world. Through our discussions with practitioners, we have identified three main factors that seem most crucial for their success:
It is a nuanced task to create an agency that can exercise many of the same functions as the police, while distancing themselves from police culture and influence.
Ideally, an IIA would be established by statute, have an adequate budget entirely its own, and be led by a director without police experience appointed for a fixed term to ensure freedom from political interference. South Africa went so far as to enshrine its IIA in its Constitution, according it the highest status of a constitutional entity and ensuring, at least in principle, its independence and guarantees of existence despite changes in governments and political context. Without statutory or constitutional protection, IIA can easily be disbanded. In Rio de Janeiro, Brazil, an investigative group that had been housed within the city’s attorney general’s office was disbanded after that office changed hands.
It is very important for an IIA to either be able to lay charges (as the Special Investigations Unit does in Ontario) or to be fully informed on case developments, if they send the case to prosecutors responsible for deciding whether charges will be brought. An IIA should also be able to issue its own press statements about the results of its investigation.
- Exclusive, but Limited Jurisdiction
IIA resources and investigative powers should be saved for the most egregious cases to ensure justice for victims and survivors. An IIA should have exclusive jurisdiction over any incidents of death, serious injury, allegations of sexual assault, torture, or enforced disappearances committed by State agents. It is also important to allow IIAs to investigate other select cases in line with public interest. But IIAs should not be charged with investigating every instance or accusation of police abuse, many of which can be handled by existing disciplinary proceedings. However, when an incident falls within an IIA’s mandate, it should lead the investigation. For instance, it should have the power to process a scene involving possible police wrongdoing and collect evidence without interference from law enforcement.
- Avoidance of Agent Bias
Evidently, it is difficult to find people who have the skills to investigate criminal acts and have not worked for a law enforcement agency. On the other hand, is it important to employ and train IIA investigators who do not have police experience. While IIAs might use former police officers for some specialised tasks, they should not use officers seconded from existing police agencies. And many IIAs train individuals with no law-enforcement background so that their investigators are a mix of former police and others. Each IIA finds its own solutions to ensure competence of the investigators but minimise their bias. In its early years, the Police Ombudsman for Northern Ireland recruited investigators from the United States, Canada, Australia, and Hong Kong. The State Inspector’s Service in the Republic of Georgia involved members of academia and NGOs in its selection process for independent investigators.
Since Jamaica’s investigation body was created, killings by police have been down by at least 25 percent
There is no blueprint for how to create an effective IIA: local needs, conditions and laws prevent a one-size-fits-all approach. For instance, in Jamaica, investigators with the Independent Commission of Investigations (INDECOM), which has operated since 2010, are on site in the aftermath of any shooting involving police. But in Rio de Janeiro, members of the now-disbanded investigative group have told us their personnel were generally not able to visit many of the scenes of a police shooting without being targeted by criminal organisations.
However, one thing is certain: while accountability of the police and military is multifaceted and requires strict rules on the use of force and strong internal controls, it must also include the threat of criminal sanction in case of serious violations. Even if there is no one-size-fits-all model of IIA, all jurisdictions could benefit from the presence of one.
The need is obvious, and the results can be striking: since Jamaica’s INDECOM was created, killings by police have been down by at least 25 percent, in some years even more. Examples such as this show that independent investigative agencies bring hope for justice in cases of alleged police violence and abuse.
Masha Lisitsyna is senior managing legal officer at the Open Society Justice Initiative
Ian Scott is a former director of the Special Investigations Unit in Ontario, Canada