International live ammunition laws

We reflect on the legalities of soldiers using live fire on protesters. The highly-charged political violent demonstrations and the ensuing shooting of people on August 1 was one of the worst of its kind. President Emmerson Mnangagwa recently appointed a commission of inquiry to unravel the events and cause of the shootings on that fateful day.

The events of that dark day will forever remain etched in the nation's collective memory. They cannot be forgotten and should not be forgotten that armed soldiers turned their guns on ordinary people and aimed and shot live bullets into fleeing crowds.

The incident cannot be filed away and classified as just another unfortunate incident on the streets of Harare. It is not right that the entire world grieved for Cecil the lion for many months, yet seven human beings most of them innocent bystanders and passers-by died so easily. We look at what some international laws and guidelines prescribe about soldiers using live ammunition to control rowdy crowds.

Right to demonstrate

Section 59 of the Zimbabwe Constitution guarantees people the right to demonstrate, stating specifically that everyone has the right to demonstrate and to present petitions, but that these rights must be exercised peacefully. The right to demonstrate is qualified and governed by the Public Order Security Act (Posa) Chapter 11:17 amended 2007. Having already established that the right to demonstrate peacefully is guaranteed the question, therefore, is what happens when the demonstrations are not peaceful and pose a danger to life and property? Does the State have the right to take away that right or to use military force to quell the chaos if it has gone out of control?

It is established under Posa that deployment of the military to help the police when they are overwhelmed is lawful. However, it is the level of military involvement and use of lethal force on unarmed civilians that does not sit well.

Most of the relevant contemporary literature is about how the Israeli Supreme Court recently upheld the use of live bullets on Palestinian civilians. Israeli soldiers routinely shoot Palestinian civilians in the bitter perennial border conflicts.

There is widespread condemnation from many countries and human rights practitioners who argue that discharging live fire into crowds breaches international law. On the contrary, the shooting of unarmed civilians finds very strong support in some quarters who argue that there are situations in which it is justified.

International law

Writing in the The Jerusalem newspaper on May 30 this year, Jewish reporter Yifa Segal criticises what he calls the misinformed protests by human rights practitioners. He says that international law is not breached merely by soldiers shooting at civilians. He argues that Palestinians who are shot at are to blame because many of them are terrorists who cross the border into Israel to carry out terrorist activities. He further says every country has the right to defend its borders and sovereignty with the means at its disposal. So according to him and his understanding of international law, civilians can be shot at if they are deemed to be a threat to the State.

The second pertinent point Segal makes is that international law distinguishes between combatants and citizens. He accuses Palestinians of being undercover terrorists who sneak into Israel with weapons to cause instability.

Posa outlaws the carrying of catapults, machetes, axes, knobkerries, swords, knives or daggers because they can be used for terrorist activities. He justifies the shooting of potentially dangerous citizens as necessary. He says that even international law recognises situations in which civilians are also combatants or where they assist combatants. By aiding and abetting combatants they are themselves terrorists by extension. Therefore, according to this view civilians who turn rogue against the State should not expect to be treated with kid gloves because the responsibility of protecting a country from internal and external threats is weighty.

Civilians or combatants?

He makes reference to international rescue mission guidelines which classify between citizens and combatants and treat them accordingly. This is why the select commission of inquiry into the August 1 events is important because it will tell if the demonstrators had turned into combatants or they were just shot at indiscriminately.

At this stage it is still speculation until the findings are published. He argues that under international law civilians lose the protection that is ordinarily accorded ordinary civilians if they turn themselves into combatants in disguise. When it has been established that civilians have turned into combatants a country is not obliged to hold off using live force until the civilians turned combatants have physically harmed other civilians and property. In that case the military can react swiftly and defend the country. He says it is actually legal to react in that way in order to avoid endangering the whole population.

Chapter 37 of Posa empowers the commissioner of police to request assistance from the defence forces if there is compelling need to do so. This happens if the police are overwhelmed and cannot cope such that they themselves are in danger. However, when soldiers are deployed in such circumstances, they will be under the command of the police. So this brings the twist in the tale and puzzle that everyone is trying to decipher of who gave the order to shoot and kill people? Any one of the chain of command could have done it, but for now it is not yet publicly known.

There are many international conventions on the use of force and firearms such as the basic principles on the use of force and firearms by law enforcement agencies. It was adopted by the eighth United Nations congress on the Prevention of Crime and Treatment of Offenders in Havana Cuna in 1990. It provides a number of minimum guidelines and general provisions that aim to safeguard the civilians as much as the law enforcement agencies themselves. We will examine the international law provisions and compare and measure them up to the very brutish one-sided view of Yifa Segal outlined above.

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Miriam Tose Majome is a lawyer and teacher. She writes in her personal capacity and can be contacted on enquiries@legalpractitioners.org