When trying to determine what is "international law" relative to use-of-force, courts look to what is formally adopted as well as other sources that are referred to as "customary international law." Sources for customary international law can include treaties, decisions of courts, national legislation, opinions of legal advisors, and the practice of international organizations. Nations who are aware of these sources and nonetheless remain silent as to their content can be deemed to have consented to these "laws" and standards.
To avoid the "silence equals consent" argument, nations learn to publish their positions, formally, in written manuals and opinions, as well as informally in symposiums and training. Thinking strategically, some countries go one step further by offering to draft other countries' manuals and conduct their training. Then, if confronted on a specific topic, they point to their own manuals and training and every other country's manual or training that is consistent with their opinion. Keeping in mind, they wrote the other manuals and conducted the training for those countries!
Challenging "Best Practices"
When police experts read legal opinions, academic journals, task force recommendations, legislation, or national police organization opinions that they disagree with--they need to speak up. They need to publish articles, write comments and editorials, produce training, testify, write books, blog, and give media presentations that are critical of the controversial positions taken by these organizations or courts.
We saw this after President Obama's 21st Century Policing proposals and PERF's 30 Guiding Principles were published. National police organizations, senior police litigators, and individual experts quickly zeroed in on those publications' most controversial aspects and wrote counter-opinions. The National Consensus on Use of Force is a great example. IACP also published a great Evidence Assessment of the 21st Century Policing report, and a senior researcher later admitted the lack of empirical evidence for most of the recommendations. Heather MacDonald's book, The War on Cops, served as a rebuttal to several of the DoJ's more politicized criminal justice assessments of that time.
Industry experts confronted with claims that PERFs Guiding Principles or 21st Century Policing’s recommendations reflected "best practices," were enabled by these counter-publications to reject the practices outright or recast them as "promising practices" or "products of brainstorming by smart police executives, politicians, academics, and activists." These characterizations did not diminish the importance of these brainstorming sessions or hopeful practices...they simply reflected that they had yet to mature into "best practices."
There needs to be much more of this.
Courtroom experts, legislative consultants, and agency legal advisors need the ability to distinguish between "Best Practices," "Reasonable Practices," "Promising Practices," "Untested Theories," and "Bad Ideas." And this is not something academics, researchers, or administrators can do alone. Academic theories and political efforts to "re-imagine" public safety may prove to be the next best thing for law enforcement, but not until they are tested, accepted, and recognized for their effectiveness by the officers relying on them for public safety.
The profession has to find its voice and courageously call out every legislative, judicial, or activist effort to hamstring the profession, or progressive efforts to manufacture controversy as a pretext for abolishing the police.
“2021” is going to be rough if our national police organizations and public safety associations don’t clearly communicate their support for "reform" proposals that promise to improve public safety and their unequivocal rejection of progressive efforts to shift responsibility from the criminal to the officers.