Editor’s note from Ryan Goodman: Just Security is publishing a mini-forum on a significant document being drafted by the United Nations Human Rights Committee concerning the right of peaceful assembly. We were honored to launch the series with an initial article by Christof Heyns, member of the Committee and its rapporteur on the draft General Comment. As Heyns noted in his article, the Committee is currently accepting public views on the draft document, and we hope this series at Just Security will contribute to the important work of the Committee.
The upcoming General Comment Number 37 (GC37) on the right of peaceful assembly, to be issued by the UN Human Rights Committee as the authoritative interpreter of the International Covenant on Civil and Political Rights (ICCPR), could hardly be more timely – or urgent. From Hong Kong to Chile, from Lebanon to Nigeria, India and Bolivia, enormous gatherings are calling attention to the limitations on the democratic and other forms of government that many citizens actually experience in their daily lives. In so doing, demonstrators seek an avenue of political participation that international law has always granted them. In many cases, however, the response from local authorities is not protection of freedom of assembly and free speech, but repression; and on too many occasions, very violent forms of repression.
It is important to begin by noting that the Draft circulated by the Human Rights Committee for comment is in line with the best examples of the contributions of that treaty body to the development of international human rights law. Not only does the Draft assert and develop existing standards that are binding on all States parties (and arguably also on non-State parties as a matter of customary international law); it does so with clear language and with the wisdom of the experience of the actual practice – and denial – of freedom of assembly over the last several years.
My terms as UN Special Rapporteur on Torture (SRT) (2010-2016), coincided with the unexpected phenomenon of the “Arab Spring,” and unfortunately also with its ultimately aborted promise of opening and democratizing highly authoritarian regimes. From denial of permits to massive arrests and excessive uses of force in dispersing demonstrations, violations of the right to peaceful protest were integral to the frustration and ultimate dissolution of peaceful revolutionary movements in several Arab countries. Situations that began with such high hopes, sadly descended into the commission of mass atrocities, such as in Egypt, or into the cruelty and devastation of armed conflict, such as in Syria, Libya and Yemen. The centrality of the repression of the right to peaceful assembly to the unraveling of the early promise of the Arab Spring underscores the urgency of reaffirming shared commitments to freedom of assembly and the right to peaceful petition, which serve as a means of channeling the conflicts inherent in many societies toward resolutions without degenerating into genocide, war crimes or crimes against humanity. The lesson of the Arab Spring is also the need to have clear and manageable standards for when authorities exercise their duty to maintain public order, including standards outlining what means and methods, as well as with what weapons, they may act.
In country visits and reports, and in views expressed as a result of communications exchanged with governments on specific cases, one aspect of the mandate of the SRT is to endeavor to draw lines between (a) the protection of freedom of assembly and the rights of non-participating citizens, on the one hand, and (b) the unlawful resort to force against peaceful marches, as well as the excessive use of force when some force was legitimate and authorized, on the other. In situations where force was not directed specifically at individual demonstrators who had resorted to violent acts, but was more or less indiscriminately directed against an entire demonstration, a line was crossed into arbitrariness and into denial of the right to peaceful assembly. During my tenure as the SRT, when overly forceful responses to demonstrations resulted in dozens or hundreds of demonstrators ending up in hospitals, I did not hesitate to say that such excessive uses of force had crossed the line into cruel, inhuman or degrading treatment or punishment (CIDT). (See here, here, here and here). Moreover, if the pain and suffering thus inflicted caused serious injury, permanent damage or death, it was torture.
These situations serve as reminders that acts of torture are not only committed in jails and detention centers, but can, and do, occur outside of such traditional custodial settings. My successor as SRT, Professor Nils Melzer of Switzerland, has published a thematic report on non-custodial forms of torture, precisely to insist that the absolute prohibition of torture and CIDT also covers the responsibility of States for various policies and practices (other than interrogation or mistreatment in prison) that need to be seen under the prism of torture if we are to address them effectively.
Undoubtedly, these lines are sometimes hard to draw. Not all demonstrations are peaceful. In civil disturbances, demonstrators may actually intend to cause chaos and destruction and even to provoke the loss of life. In many other cases, amidst a demonstration that is generally peaceful, some participants resort to unlawful acts of violence. The police have a duty to restrain any person breaching the peaceful nature of a demonstration, but should not use those acts of violence as an excuse to disrupt, or otherwise interfere with the demonstration itself. Unfortunately, however, in case after case, police and security forces not only respond indiscriminately against all demonstrators when a small subset of individuals become violent or unlawful, but actually pursue protesters for several city blocks to conduct arrests and to subdue their targets, often using violent force. In such circumstances, almost by definition the arrests are arbitrary because they are indiscriminate.
Authoritarian governments often claim that isolated acts of violence transform an entire demonstration into an unlawful event in attempts to justify the use of force to disrupt it. Achieving the proper balance among the duties of security forces to protect the public, to facilitate peaceful expression and assembly, and to contain and repress violent action requires training and leadership. The upcoming GC37 will provide significant content to capacity-building programs in security forces of democratic States, especially draft paragraphs 40 to 79 on permissible and unlawful restrictions on freedom of assembly; paragraphs 85 to 106 on duties of police during demonstrations, and more specifically paragraphs 97 to 99 on weapons to be used, and 101 on the duty of the State to investigate impartially all uses of undue force and hold those responsible for it accountable.
The Draft also covers recent trends toward the increased use of non-lethal instruments for the containment of demonstrations. Some such instruments, such as water cannons, have been around for decades. Others, like rubber bullets and taser guns are of more recent vintage. And, appropriately, the draft engages the debate about instruments like drones and autonomously directed weapons that may well become the instruments of choice in the future for these purposes.
As experience shows, non-lethal weapons can cause pain and suffering of a seriousness associated with CIDT and, on occasion, torture. In Chile, for example, in only a few weeks of protests more than a dozen young men and women lost their eyes to rubber bullets. Even when the injuries suffered by demonstrators are not of a permanent nature, they are often serious enough to leave bloody marks and to require emergency care. Specific guidelines and restraints are necessary to circumscribe the use of all weapons against protesters, including non-lethal ones. Rubber bullets, for example, should never be shot at close range or at the upper body of a person targeted. Hence, it is not always a question of whether the ammunition itself should be prohibited, since the use of such ammunition is far superior to allowing live rounds to be used against demonstrators. Rather, rules are needed to ensure that such ammunition is skillfully and professionally utilized in situations where its use is lawful and legitimate. With taser guns – devices that inflict a paralyzing discharge of electricity – the debate over whether they should be banned altogether or at least banned as a method of crowd control remains open. Taser guns raise additional concerns for the right to peaceful protest because they may be used not to contain a person who may be dangerous to others, but to inflict severe pain on demonstrators as a means of retaliation or punishment merely for demonstrating in the first place. At the very least, it should be noted that the use of taser guns against demonstrators is simply bad policy because an unruly mob can easily react in the worst possible way to seeing one of their own being shot and rendered immobile. All of these factors underscore the need to regulate or ban production of and trade in some non-lethal weapons, and to carefully delineate the parameters of their lawful use.
[Editor’s note: For more on this topic, see the UN Human Rights Guidance on Less-Lethal Weapons in Law Enforcement (Aug. 2019) and the forthcoming symposium at EJIL Talk on this topic.]
Some police forces under governments who wish to respect human rights have developed protocols of intervention that seek to make effective use of instruments and tactics that protect the public space and also enable the peaceful exercise of freedom of assembly. Unfortunately, when governments change and the newly elected authorities feel they need to satisfy some unspecified clamor for “law and order,” such protocols tend to be ignored or reversed in important aspects and police forces ordered to show toughness, rather than restraint. In the immediate aftermath of bloody confrontations with demonstrators, those same governments often refuse to investigate and analyze what went wrong and instead adopt a stand of forceful defense of all law enforcement practices, no matter what the results have been. It is my hope that GC37, when finally published, will provide substance to the discussion and development of appropriate protocols that will prevent abuses of non-lethal instruments. Along these lines, a recent publication by an international coalition of human rights organizations, together with prior publications in 2013 and 2016, make a powerful case for renewed attention to freedom of assembly and offer important guidelines for proper law enforcement policies and practices on the street.
Existing “soft law” instruments of international law already provide needed guidance on the use of firearms by law enforcement bodies. Such instruments should be updated to reflect the proper, limited use of non-lethal weapons. In the meantime, the comments to GC37 solicited by the Human Rights Committee offer a welcome structure for an open and participatory debate that will empower civil society organizations to defend the freedom of assembly, and hopefully also encourage States to find and enact regulations that protect the public’s right to protest.