The death of George Floyd on May 25 has spurred a tsunami of protests in all 50 U.S. states and a multitude of other countries in the world. In recent days, protests have not diminished but instead continue with full force. To the eye of a demonstrator, the police are the face of the government and epitomize the power of the authorities. In this particular case the police themselves are also the main subject of the protests. From a sociological dimension, this all makes the fuse between peaceful protest and violence or use of force much shorter and the situation far more combustible. Yet, notwithstanding the difficult social dimension, these demonstrations are protected under international law, in particular, Article 21 of the International Covenant on Civil and Political Rights (ICCPR), which imposes not only a negative duty on the government to refrain from undue interference in demonstrations but also a positive duty to protect and fulfill the exercise of the right to peaceful assembly – in short, to facilitate people’s ability to exercise the right. By the same token international law recognizes only the right of peaceful assembly.
Facts on the Ground
There is a lot happening on the streets that’s reassuring. Stories of solidarity are transpiring, as thousands of people march, sit-in, and protest in peace, all facilitated by the authorities. Stories of solidarity of police with protesters have also emerged where police have “taken a knee” together with protestors to honor the memory of Floyd, and engaged in similar acts, such as walking with protestors.
Unfortunately, police and National Guard units have also been responding with force. In many instances that force has been overwhelming and disproportionate. There have been reports of shooting of protesters by police, use of tear gas and other chemical irritants such as pepper spray and pepper balls, use of batons, blinding and shooting with rubber bullets or other kinetic impact projectiles, use of “kettling” of protesters including of those attempting to get home prior to curfew, and the arrest and attack of media personnel at an unprecedented level. While recent days have involved largely peaceful protests, earlier days witnessed some individuals deliberately destroying property (including police vehicles), and looting. In those cases, when hotspots of violence have erupted, police forces armed with military equipment has often been the first responder. Where the military has been called to assist the police, it should act in accordance with the same standards concerning facilitating assemblies and the use of force as the police. Interestingly, authorities have also been using “contact tracing” technology designed for the Coronavirus pandemic, to track and surveil protesters, which will require rigorous legal scrutiny, once the dust settles.
The Right to Assembly
Just as much as nauseating scenes of excessive use of force by the police captured by media and citizens’ smartphones fly in the face of the protections that should be afforded to peaceful assemblies under Article 21 of the ICCPR, uplifting scenes of masses of peaceful protesters highlight the important democratic value of the right to assembly. The human right to freedom of peaceful assembly has long been a key avenue of political participation, particularly for groups and parts of societies that have been disenfranchised, oppressed or discriminated against.
The demonstrations also remind us that freedom of assembly is not absolute. Article 21 of the ICCPR itself contains an exhaustive list of limitations in a similar manner to Article 29 of the Universal Declaration on Human Rights. Restrictions under Article 21 are permissible if “imposed in conformity with the law” and “necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”
Undoubtedly, the task for legal interpretation begins here, in the realm of understanding what constitutes a permissible limitation, what constitutes a violation of the right, and what it all means in practice. Where domestic systems fail, international human rights law persists and evolves to meet new challenges to the right to the freedom of assembly.
The Presumption of Peacefulness
First and foremost, there is a presumption in favor of regarding a peaceful assembly as protected. This means that even spontaneous, non-notified assemblies in reaction to a particular event, such as an incident of police brutality, may go ahead for as long as they are peaceful and deserve the protection and facilitation of authorities. Any required notifications are to serve the purposes of coordination of support for the assembly, rather than strict requirements for permission. Demonstrations must also be allowed to be held within “sight and sound” of their target audience. Therefore, no public (or sometimes even private) space is off limits for demonstrations, unless genuine reasons related to national security or safety (or other permissible, but exhaustively listed limitations) are shown to exist. Assemblies cannot be deemed non-peaceful simply because they involve trespassory actions.
Authorities should therefore assume that an assembly will be peaceful if its organizers and participants have peaceful intentions and do not carry arms. Thus, while riots will not be protected, civil disobedience manifested without force is prima facie protected under Article 21 of the ICCPR.
It is important to note that the determination of peacefulness relates not only to the contents of the opinions expressed at the assembly (which are also protected, barring actual incitement to violence) but rather to the manner in which the assembly is held. Although assemblies must be peaceful, their content (message) may embrace even expression that is deeply offensive to a Head of State or another public authority. Limits along this dimension are specifically laid out in ICCPR Article 20(2) which states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
Importantly, the peacefulness of an entire assembly is not assessed solely by the individual acts of one or some persons, who might be acting violently. Peaceful protesters at a violent assembly retain their protective rights under ICCPR Article 21, along with other, more general human rights protections, such as the prohibition of inhumane or degrading treatment. Thus, violence by counter-demonstrators or provocateurs does not justify the denial of the right of others to demonstrate. The government also remains responsible for securing the peacefulness of a protest, while always refraining from the excessive use of force. For this reason, dispersal of an assembly should not occur where only an identifiable individual or a subset of the larger group engage in violence.
Derogation, Proportionality and Uses of Force
Article 4 of the ICCPR does provide governments the power to derogate from certain human rights obligations where there is a public emergency threatening the life of a nation. The freedom of assembly is one such right that may be derogable during emergency situations. The U.N. Human Rights Committee’s General Comment No. 29 on Article 4 derogations during a state of emergency provides that “measures derogating from the provisions of the [ICCPR] must be of an exceptional and temporary nature.” Additionally, not every catastrophe or disturbance qualifies as a state of emergency, permitting the derogation of rights. General Comment 29 also lays out an exacting test of necessity, stating that any “measures [involving the derogation of ICCPR rights] are limited to the extent strictly required by the exigencies of the situation.”
The permissible limitations which may be imposed under international law, must always pass the test of proportionality. Hence, limitations are acceptable only if there are no other means available to counter a threat to national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others by a specific protest action. Such threats must also pass a rather stringent threshold of seriousness in order to permit curtailment of the right to assembly. As examples, a threat to national security must be a threat to the life of the nation, while a threat to public order allows restrictions only where there is no other way to restore peace than to limit or ban assemblies. In order to justify restrictions such threats must be real and not hypothetical. Specifically, if assemblies cause a threat to public health, as in the context of ongoing demonstrations taking place amidst a global pandemic, measures may be justifiably put in place to ensure that the health of demonstrators and the general public is not compromised. However, any restriction upon freedom of assembly, even if legitimate in its aims, must remain proportionate in relation to the security benefit obtained. Thus, an outright ban on assemblies citing public health (or other reasons) would in all likelihood be overbroad and hence, illegitimate under applicable human rights law. Undue restrictions or excessive use of force, also when applied in the context of an epidemic, will increase rather than decrease the risk of contagion.
Currently, assembly rights enshrined in Article 21 of the ICCPR are finally being interpreted in more detail through the process of the Human Rights Committee drafting General Comment No. 37 (for more information see Just Security’s mini-forum on draft General Comment 37). According to paragraph 107 of the current draft of General Comment 37:
If States derogate from the Covenant in response, for instance, to a mass demonstration including acts of violence, they must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation.
Draft General Comment 37 also states that if not derogated from, the right to freedom of assembly will continue to apply throughout a state of emergency, and that placing some restrictions on the right, without altogether banning assemblies, is generally sufficient during emergency situations. More generally, any limitations must always pass the test of proportionality. Therefore, while the right to assembly may appear relatively weak during periods of emergency as a result of its non-absolute nature, in practice many safeguards remain in place during even the most serious crises.
Importantly, in the context of the current mass protests occurring in the United States and throughout the world, one safeguard that cannot be derogated from even during an emergency, is the prohibition of the use of excessive force by the police, which seems to be the most concerning issue at the moment. When violence erupts and even when there is a state of emergency, use of excessive force, and in particular shooting into a crowd of demonstrators would never be considered permissible. Proper rights-respecting approaches to managing assemblies, including the use of force, are laid out in greater detail in a joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions. As the two rapporteurs explain in their report, force should not be used at any assembly unless it is strictly unavoidable and, if ever applied, only in accordance with international law and the normative framework governing the use of force, which includes the “principles of legality, precaution, necessity, proportionality and accountability.”
This year, the U.N. Office of the High Commissioner of Human Rights issued new Guidance on Less-lethal Weapons in Law Enforcement which builds upon and updates the most pertinent international documents in this field, namely, the U.N. Code of Conduct for Law Enforcement Officials, and the U.N. Basic Principles on Use of Force (1990). The Guidance updates these documents not only in terms of technological advances in the use of what was once called “non-lethal weapons,” but also changed the language used to describe such weapons to “less-lethal weapons” in order to highlight the reality that the use of any weapon can potentially have fatal consequences.
In a section devoted to policing assemblies, the Guidance begins with the reminder that even unlawful assemblies must be respected, de-escalation techniques should be used to avoid violence, and warns that a heavy display of less-lethal equipment may in fact escalate tensions, rather than subdue them. The Guidance makes the important distinction also that law enforcement must, during a demonstration, distinguish between violent and non-violent participants and cannot disperse an assembly or use force indiscriminately against all demonstrators simply based on the acts of a violent subset of individuals in the midst of an otherwise peaceful assembly. Less lethal weapons to disperse an assembly should always be used as a measure of last resort and warnings and announcements of its impending use should be provided as far as possible to demonstrators ahead of time, giving them ample space and time to leave, and avoiding the creation of stampedes. For this same risk of panic and stampedes only less-lethal weapons which are precise and which authorities have been properly trained to use may be employed in order to avoid impacting non-violent participants, innocent bystanders and monitors, including the press. The Guidance unequivocally confirms that the use of firearms to disperse an assembly is always unlawful.
Curfews and Other Restrictions
While imposing a curfew with the effect of banning demonstrations or meetings may not automatically be a violation of ICCPR article 21, it would be a very far-reaching and blunt measure that would be very difficult to justify. Draft General Comment No. 37 is particularly detailed and instructive as to what the requirements of legitimate aim, necessity and proportionality entail when authorities restrict the time, place or modalities of assemblies. Any indication of a ban or curfew being imposed on the basis of political considerations, rather than genuine requirements of necessity, would tilt the assessment towards a conclusion that ICCPR Article 21 is being violated. For instance, in paragraph 45 of the draft General Comment the Committee states:
Any restrictions [of Article 21 rights] should be considered imperative, in the context of a society based on democracy, political pluralism and human rights, as opposed to being merely reasonable or expedient. They must also be the least intrusive among the measures that might serve the relevant protective function.
Conclusion: An Era of Protests that Promises to Continue
As we witness the ongoing mass protests ignited by the killing of George Floyd, we should bear in mind that we live in an era of mass protests. The ability of social media and the internet to instantaneously broadcast shocking images and videos, and to facilitate the rapid mobilization of large groups of people has made this reality possible. Consequently, dealing with large-scale assemblies and protests is a challenge governments will continue to have to deal with. This increasing prevalence of protest movements underscores the importance of the upcoming General Comment 37 on Article 21 of the ICCPR. The fallout from societal problems once tucked away in a single corner of the world and now made visible, pandemics such as the ongoing COVID-19 pandemic, along with their social and economic repercussions, and the palpable democratic deficit in many countries means that we will be seeing more, not less, mass protest.
Any mass gathering during a dangerous epidemic entails an increased risk of contagion. Much of the evidence of such enhanced risk is presented in a Twitter thread by Professor Nicolas Christakis. Both the organizers of demonstrations and, especially, public authorities are in a position through their choices to address and mitigate such risk. Organizers of peaceful demonstrations need to think creatively about new forms of protest and about protecting both the demonstrators and others. Authorities must refrain from any measure that would counteract such protections, or otherwise carry a heightened risk of contagion.
When people saw the eight minutes and forty-six seconds it took to kill George Floyd, privately they couldn’t do anything but watch. The collective anger the video caused however, became a mobilizing force and mass protests erupted. If the public order is to be protected and restored, use of force by the authorities must be held back, constrained and result in accountability. Anything less will simply foment further anger and frustration, and invariably, further protests.