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A video has been posted in 2017 showing a huge crowd of people storming the Spanish border post in Ceuta. Another 700 illegal immigrants stormed their way into Ceuta in 2018. From the videos it is obvious that the border guards are armed, however they avoid using their weapons despite being overwhelmed and physically threatened (four border guards were hospitalized in the 2018 incident).

Do EU laws allow border guards to use their weapons to protect the European territory? If not, why are the border guards armed in the first place?

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    From what I understand of the description on that video, this happened at the Spanish-Moroccan border. I don't think that the Schengen treaty applies here, as Morocco is not a participant in that treaty. – user11249 Aug 23 '17 at 22:22
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    It is a border to the Schengen zone, ie between a country outside the zone, and one inside. – James K Aug 23 '17 at 22:27
  • @Carpetsmoker Ceuta is part of the Schengen area. It's an external EU border just like any other. – JonathanReez Aug 23 '17 at 22:30
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    Actually Ceuta (and Melilla) are special cases. Moroccans from the provinces next to these cities can enter without visa, so there are border controls in the transports going from those cities towards Spain and other Schengen countries. en.wikipedia.org/wiki/Schengen_Area – SJuan76 Aug 23 '17 at 22:34
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    Let us continue this discussion in chat. – phoog Aug 6 '18 at 21:42
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Just to support that there's most likely no EU-level law about what you ask, the EU publsihed Practical Handbook for Boder Guards (Schengen Handbook) only mentions weapons once, when it comes to a reason for searching a vehicle, i.e. suspicion of weapons smuggling. It also mentions firearms exactly once, again as being part of items that can be seized. It says nothing about guards pulling or using their firearms/weapons etc. That's mostly left to national laws (and some other agreements, see further below).

The "Study on Conferring executive powers on Border Officers Operating at the External borders of the EU", which is mostly concerned with guest border guards from other EU states says

A detailed analysis shows very different answers from concerned States to each practical question regarding the right to wear a uniform (3 countries ignore or limit this right, on the contrary 9 consider that it is an obligation), to wear a service weapon, to access private property, request ID or travel documents, access to information systems, interview persons, check for the correctness of information, reporting, using force etc. Analysing the 70 possible tasks related to EU border control, the number of tasks that may be conferred to guest officers varies - depending on which country is analysed- between 2 and 60 (!).

These different answers (even when facing identical situations) demonstrate the current lack of a consistent legal framework in Europe in order to regulate the conferment of powers during EU joint operations. It is also the evidence that our common legal basis (the Schengen “acquis”, our common strategy – even coordinated by a common agency) is too general to be translated into operational realities just based on bilateral agreements, and without making a minimal effort to agree on common basic rules. The elaboration effort will be facilitated by commonalities in many existing agreements, regarding cases of self defence, emergency situations, hot pursuit etc.

I.e. there's vast variation on even the laws/regulations for carrying a service weapon, from which one can entail that that also applied to using it. Actually, the have a giant table with the rights, which include these rows on service weapon: carry, use individual, and use of collective weapon (no idea what that last bit means exactly--crew-served weapons or area weapons). The caption that goes before that giant table is:

Below is a generic table illustrating the tasks carried out by border control services in the 28 relevant States, consequently combining explicit legal provisions from the above-mentioned acts and prerogatives implied in the generic competence of controlling borders.

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For completeness sake, fewer of these countries allow a guest border guard (i.e. from another EU country) to carry a weapon... or to bring it with them; only about half the EU countries do that:

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and even fewer (11 countries) allow guest border guards to use their weapons.

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It's mostly the countries of the Prüm Convention which allow other officers from other EU countries to carry weapons; but there also bilateral agreements between EU states--France and Germany have one also UK has one with France. (The study is from 2006, whereas according to Wikipedia, more countries joined the Prüm convention in subsequent years.) It's worth investigating if the convention unifies the conditions for the right to use a service weapon... but it turns out that it's very general, and mostly it defers to the local/host laws:

(the EU pdf on this is borked to use a private character set, so here's an image instead):

enter image description here

So besides some general principles, there's nothing like a uniformization of service weapons regulations in the EU.

Also, as to whether they are armed, mostly yes, on their home country territory. It gets really complicated with the guest guards.

The cultures of the various law enforcement services show remarkable differences related to carrying service weapons. These distinctions are illustrated as follows:

  • Border control officers do not have the right to carry weapons in every State (e.g. the UK, Malta). In other countries like Norway, police officers are usually not armed when operating in home forces, but carry a weapon when they participate in U.N. missions;

  • According to the Internal Regulations of the National Police, French officers have the obligation to carry their service weapon when they wear their uniform. This has been the subject of discussions with Slovakia for example when it organised a JO authorising foreign uniforms but not weapons.

So if you really want an answer about the Ceuta case, you should probably ask about he Spanish laws instead.

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    That's a great answer, however I believe that lawsuits in the European Court of Justice might contain relevant interpretation of human rights laws - e.g. from people who were shot by border guards while trying to cross. – JonathanReez Aug 4 '18 at 16:24
  • @JonathanReez: good point, I should probably check that. – Fizz Aug 4 '18 at 16:37
  • @JonathanReez: while I was looking for that, I found an article about Greece, where it's prohibited to fire if there's a chance of hitting bystanders. loc.gov/law/help/police-weapons/greece.php#Rules So I suspect something similar may apply in Spain, but I don't know for sure. Also "The European Court of Human Rights has found against Greece in a number of cases involving the ill-treatment of detainees or misuse of firearms by the Greek Police, including lack of an effective remedy. In some cases, the victims were migrants or members belonging to minority groups. " – Fizz Aug 4 '18 at 16:50
  • @JonathanReez: this should give you an idea of the rules of engagement that Spanish police had :dailymail.co.uk/news/article-4727702/… this guy would have been instantly killed in the US for advancing with a knife on police. – Fizz Aug 4 '18 at 17:08
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    (+1) Interestingly, the Schengen regulations define in great details what is or is not allowed (e.g. how to calculate the duration of stay, how to establish whether someone has overstayed their visa, etc.) but are completely silent on sanctions. That's because, as you point out, EU countries have very different law enforcement cultures and are reluctant to have the EU regulate anything connected with criminal law. – Relaxed Aug 5 '18 at 8:51
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Use of a gun is lethal force. If you draw your gun you must be willing to use it. If you fire the gun you do so with the intent to kill. There's no such thing as a warning shot. Lethal force can only be used when it is proportionate. The Spanish border guards can use their guns to protect their own life, or to protect the lives of others.

This is the judgement that an armed officer has to make. Are lives at risk if I don't kill this person? So if a person were to draw a knife and attempt to stab one of the guards, or if a person were to approach the gate wearing what seemed to be an explosive vest, then there is a clear threat to life and lethal force is justified. However, it is not clear that anyone's life was ever threatened by any member of the crowd. The broken leg occurred when a guard tried to kick/trip a running person and fell awkwardly. To kill any person in the crowd would be disproportionate. And so if you don't intend to use your gun, you don't draw it.

The relevant laws are Spanish Laws, and Human Rights Laws, not European law or the terms of the Schengen treaty.

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    @NotMe that does not mean that they cannot do anything. Try to run the border alone and you will be reduced and arrested. But with so many people, the only way to stop them would be to fire into unarmed civilians. That is generally forbidden: nytimes.com/1992/01/21/world/… – SJuan76 Aug 23 '17 at 22:40
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    I can't find much that is specifially about spain, but the UK law is representative: lep.co.uk/news/crime/… "the primary purpose of opening fire is: To prevent an immediate threat to life" "A person may use such force as is reasonable in the prevention of crime" "the use of lethal force will only be justified where it is absolutely necessary". These are typical of the laws governing police use of firearms. A police officer cannot shoot a person unless he believes life is at threat. – James K Aug 23 '17 at 22:54
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    @Sjuan76: I agree that firing into unarmed civilians would be a disaster. However it seems to me that border guards who are barred from the use of the weapons at their disposal to prevent people from crossing the very thing they are there to guard is essentially nothing more than an ignorable sign post. If 5, 10 or 100 people are determined to pass the barriers then they have no real fear of real reprisal. The worst that can happen is they are picked up and shipped back. I don't know what the solution is here but if the guards aren't allowed to shoot then they shouldn't be armed with guns. – NotMe Aug 23 '17 at 23:36
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    @NotMe I do have a computer (that I use to access the internet) and a car (that I use to move around). When I try to access the internet, I use the computer, not the car. That does not mean that I should not be allowed access to the car, because I will need it when I want to move around. Cops do have access to guns, but they have to use them only in life threatening situations; in other situations they may use other means. The fact that they do not use the guns for everything does not mean that they should not be allowed to have them for when they are necessary. – SJuan76 Aug 23 '17 at 23:50
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    @NotMe I'm not sure if you are suggesting improvements, but I've already discussed the circumstances in which guards are allowed to shoot "if a person were to draw a knife and attempt to stab one of the guards, or if a person were to approach the gate wearing what seemed to be an explosive vest," It's not clear what you mean by "real reprisal". It's also not clear what you mean by "use of the weapons", if you don't mean shooting unarmed civilians. – James K Aug 24 '17 at 0:13

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