HUMAN RIGHTS IN PEACEFUL PROTEST

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By Euan O’Neill

Photo by Felipe Kup Barbieri de Matos

On the second of December 2013, after a weekend in which the Ukrainian protests had been cemented in the public consciousness, the Office of the United Nations High Commissioner for Human Rights held a seminar at the Palais des Nations in Geneva on effective measures and best practices to ensure the promotion and protection of human rights in the context of peaceful protests. The Seminar comprised a panel of international legal and human rights experts, representing states, academia and human rights organisations and its findings were reported to the Human Rights Council.

There is no specific right to protest peacefully in the UN Declaration of Human Rights.  Rather than existing independently from other rights, this multifaceted right is an amalgamation of other Declaration Rights, such as the right to peaceful assembly and the right to freedom of expression. The right to peaceful protest is different to most other rights as it is used to exert other rights, such as a method to exercise freedom of expression, rather than being an end in itself.

The right to peaceful protest is becoming more important in both mature and fledgling democracies as people realise the change that peaceful protest can bring about, having been inspired by other protests broadcast from across the world.  Protesters, aided by social media campaigns, want to have their voices heard by those in power. This right to protest exists alongside others, and has to be balanced with the rights of non-protesters and property owners, to ensure that all human rights are respected in the context of peaceful protests.  The seminar stated the importance of protecting the right to peaceful protest under international and national law, although there was no consensus as to whether this should involve a new custom made charter right.

A key issue raised was that of educating those employed to act when the state wishes to regulate or curtail peaceful protest, especially with regard to developing countries.  Law enforcement staff work with the tools and skills that they possess, and unless there is a culture of human rights protection present in the security services, citizens cannot fully exercise their right to peaceful protest without fearing for their safety.  Poorly trained armed forces are likely to act rashly when they encourage protests, especially when they are unplanned.  It was emphasized that providing equipment and training to security forces is one of the most vital duties of the state as part of its obligations to protect human rights as security personnel must have the appropriate resources for the varied situations in which they will find themselves. Christof Heyns, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, stated the importance of proper equipment.  According to him,  ‘When one has only a hammer, everything looks like a nail.’ A soldier with only a gun at his disposal is more likely to use it, with lethal results.  If he has other less-lethal options available to protect non-protestors, property and himself then the risk to all concerned will be lower. In Brazil, for example, supplies of rubber bullets, given to police to be used during any troubles in the 2014 World Cup, have already been used up by the police force, who lack more appropriate resources for dealing with peaceful protesters.

The importance of protecting rights in both law and practice was recognised by the panel. States cannot enshrine principles into national constitutions whilst simultaneously disregarding them, the panel emphasised the role of the international community in aiding states develop human rights compliant policies for the benefit of its citizens, and by extension, for the state itself.

Ms Hina Jilani, a member of The Elders Group and a human rights advocate for many decades in her native Pakistan, highlighted the role of peaceful protests as a vent for society, which governments would be foolish to ignore, let alone stifle.  Her view was that protest is a vital part of representative democracy, which is of heightened importance during elections. In democratic societies, the state cannot expect that the populace will sit contentedly between elections, twiddling their thumbs for a couple of years, as they wait for the next time to tick a box and voice their grievances. Ms Jilani emphasised that for the state to be relevant it must be aware. She reminded the panel that throughout history it has been through protest, whether peaceful or otherwise, that change has occurred.

As the frequency of protest increases, with new media playing a significant part, the role of women in peaceful protest is gaining in importance and recognition.  This was clearly seen in the early days of the Arab Spring in  Tahrir Square and in Tunis.  Women are beginning to assert their equal right to protest with all the good that this brings to a society.  Some women are using their traditional position of respect to their own advantage, by taking frontline positions, protecting young men against whom police will usually respond more violently. The participation of women within peaceful protest, which is met with retaliation, can have devastating consequences, as reports of rape and sexual assault bear witness to.  In Guinea, in 2009 women were encouraged to join protests at a Conakry stadium, only for 157 protesters to die as troops opened fire.  100 women were raped in the bloodbath.  This was a horrific abuse of the human rights of these peaceful women protesters and a graphic example of the debasing tactics some security forces will exercise to stifle protest and silence and humiliate protesters.

It is generally accepted that there must be some system of regulating protests in a democratic society.  The right to peaceful protest is one of a plurality of rights that exist simultaneously, especially in the symbolic and public spaces where peaceful protesters choose to congregate. The rights of protesters to assembly and express themselves must be balanced against the human rights of non-protesters and property owners in that area. However the panel was uneasy with the idea of legislation, as lawmakers often ignore their negative obligation of non- interference in favour of regulations. However well intentioned it may be, legislation in the domain of protest often leads to its over-regulation and, thus, restriction of the scope in which to exercise peaceful protest rights.

The traditional way to regulate peaceful protest has become challenged, as more and more protests emerge through social media with an unprecedented spontaneity and speed.  These, often friendly, flash mobs do not fit into the traditional structures of regulation, as they grow organically from a wider base of protesters with fewer defined leaders willing to take responsibility for the protest. With no clear leaders, there are logistical challenges for the authorities.  A protest cannot be seen as a single entity, non-peaceful aspects must be viewed separately from the peaceful protest to be treated separately by the state.

The new organic structure of protest has led to an increase in the number of protests where no prior authorisation has been given, creating uncertainty regarding their legality. Debate exists as to whether protests must be authorised to be legal, or whether notification is sufficient.  It was mentioned that, ideally, all peaceful protest should be permitted, and that all non-peaceful protests should not be authorised.  The panel stated the need for a definition of ‘lawful protest’ to exist at the level of international law, to prevent states from using national legislation to declare peaceful and non disruptive protest as unlawful.

The distinction in law and in fact between what is violent and what is unauthorised led to a split in opinion. There was, on one hand, a call for greater definition, with the possibility of amending the UN Declaration of Human Rights to include a specific right to peaceful protest. On the other, a contextual approach was favoured, as it was recognised that each country is a different context in which peaceful protest occurs.

The seminar ended with a lack of consensus as to whether or not a separate right to peaceful protest should be created. All speakers, along with those States and organisations involved agreed that with the increased use of this “right to the streets” the international community must act to protect peaceful protestors from human rights abuses.

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