CHRISTOF HEYNS 2 October 2017
With a sharp increase in protest around the world over the past decade, international and domestic standards for state protection and management of assemblies must be pursued.
Seen from one perspective, the rise in the incidence of demonstrations around the world is a welcome development. Not too long ago there were mainly only two options for those who saw themselves as being at the receiving end of an abusive state: submit and wait like one does for the weather to clear up; or take up arms to defend yourself.
Taking to the streets unarmed, and using your physical presence to show your opposition to the powers that be, was simply not an option. Even if courageous individuals would dare to defy the state unarmed, the masses could not be mobilised to follow this route. They knew all too well that this was not likely to have a happy outcome for them personally, or to bring about a change for others.
It was at the beginning of the 20th century when Gandhi found it possible to persuade large numbers of the rank and file in South Africa and then India to follow him unarmed into the streets – and by and large they lived to tell the tale. By now, mass-communication was starting to evolve, and atrocities in one part of the world began to resonate in other parts of an evolving global village, which in turn started to regard adherence to human rights standards as a prerequisite for membership of the newly formed global community.
The world – those who study these things tell us – has over the last couple of centuries at least started to become a less violent place, and this has had far-reaching consequences for the forms of protest that can be made against states. A ‘third option’ increasingly became possible in many societies, alongside violence and submission – namely that of mass protest.
There was now at least a chance in some cases that states faced with street demonstrations would hold back on the use of force, and if not, the rest of the world would take note and in some cases act on it. Demonstrations could either replace violence altogether, or at least delay a resort to it. The rise of this less lethal tool of opposition was a result of a less violent world, but also a cause.
How powerful unarmed demonstrations could be was shown when Gandhi became the first brown-skinned person to stand up to a European Empire – and win a permanent victory. Major ideological changes and power shifts came about during the last century at least in part through such demonstrations, including the end of colonialism, racial discrimination in the US, apartheid in South Africa, and communism. It also played a central role in asserting women’s rights, the importance of the environment, LGBTI rights, and indigenous rights. It has become a major means of expressing the ressentiments of globalisation.
Demonstrations, political participation and democratic expression
All this hardly means that all is well with demonstrations in the world. The acceptance that the state should facilitate demonstrations, instead of using restraint, is far from universal. In many cases excessive force is still used: organisers are targeted before or after the event, and/or demonstrations are restricted by activities such as the closedown of social media. The mere fact that demonstrations on such an extensive scale take place also demonstrates the underlying tensions and in many cases the general lack of respect for human rights.
It should also be recognised that not every demonstration is to be welcomed as being in line with democracy and human rights. In some cases, demonstrations are aimed at promoting hatred against sections of the population, or can deteriorate into random violence and anarchy.
However, the point remains that demonstrations have become a central and important part of political participation and democratic expression today, including as a response to some of the major challenges of our time. They do pose risks and are at times misused, but the proper response is not to repress demonstrations in general, but rather to manage them properly to maximise freedom and contain risks.
Given the increased prevalence of demonstrations and the potential volatility of such situations, it is of ongoing importance to ensure that that all sides operate from a shared framework for the conduct of demonstrations – that there is a widely acceptable set of rules for this relatively new form of engagement. In many cases, states and protestors alike traverse unknown territory in the process. What can the various parties expect from each other? What should be the role of emerging technologies? How can dangerous surprises be avoided? How are domestic laws and practices brought into conformity with international standards?
The development of a framework for the conduct of demonstrations
My interest in contributing towards the development of a framework to deal with the increasing prevalence of demonstrations arose after I was appointed as Rapporteur on executions in 2010. I wrote my first report to the Human Rights Council on ‘protecting the right to life in the context of the policing of assemblies’ during the advent of what was then heralded as the ‘Arab Spring’.
In the report I emphasised the need for a holistic approach by law enforcement officials to demonstrations. The fact that demonstrations were now a common occurrence was not an excuse for police officers to say they were caught off-guard and the situation had escalated to a point where they had to use force to defend themselves, if they were in a position to diffuse the situation before it got to that point. That was even more the case if their own conduct had caused the tensions to erupt.
This means we should not only apply the tests of necessity and proportionality to the police use of force, but also the test of precaution. States must go upstream and ask the question whether they could not have avoided the use of force through measures such as proper equipment, training and planning.
In other words, given the central role of demonstrations in the world today, the focus cannot be on the use of force seen in isolation, but has to be on the way in which the authorities deal with demonstrations in general.
I got the opportunity to expand on this approach when the Council asked Maina Kiai – the Rapporteur on assembly and association – and myself to prepare a joint report on the proper management of assemblies, which we presented in 2016. We argued for an approach that viewed peaceful protest not as a threat to democracy, to be resisted or at best tolerated, but rather as an integral part of democracy. The report attempts to provide a re-statement of the norms applicable to demonstration in a holistic way – integrating the proper management of the entire process of demonstrations with the rules on the use of force.
Given the important role of this right in our society, a special duty arises on the part of any state purporting to be democratic, when people engage peaceful assembly, to facilitate the process. Regular laws are not to be suspended in the context of peaceful protest, but instead of the normal emphasis of the police on maintaining law and order, the focus should shift to protecting rights where necessary. In other words, where this right is at play, the police should not respond with the full force of the law to every infringement provided that it does not threaten rights.
In the joint report we also emphasised the point that there is no such thing as an unprotected assembly. Many rights come into play during a demonstration, and even if the demonstration ceases to be peaceful, and those present loose the right to peaceful assembly, the participants retain their rights to bodily integrity and the right against discrimination, to name only two. Moreover, violence on the part of a few individuals does not render the entire gathering violent.
The need for domestic laws to conform to international standards
Hopefully the initiatives listed above – and others that have followed in its wake, such as the adoption by the African Commission on Human and Peoples’ Rights of Guidelines on Policing Assemblies in Africa, which largely follows the same approach – have contributed towards a more widely shared normative framework for the management of assemblies.
However, there are many aspects of the management of demonstrations that still seem to me to warrant further attention. A central point relates to domestic laws on the use of force. In a large number of states, the domestic laws on the circumstances under which law enforcement officials may use force are shockingly permissive.
These laws in many cases are relics from colonial times, and in the case of former colonies of Great Britain are still based on the latter’s Riot Act of 1714. If 12 people have gathered and fail to disperse after three warnings, firearms may be used with impunity. The picture is not much different in countries with different histories, including those that were under Soviet control (see here).
This needs urgent attention. International human rights law works on the basis of subsidiarity, which means that international law provides only secondary protection. The domestic system is the first line of defence. Especially where the use of force involving serious injury or death is at stake, the results of violations are irreversible. Domestic laws should be brought into conformity with international standards, to ensure that training and accountability can occur and precautionary measures can be taken in line with those standards.
Regulation of crowd-control weapons and other technologies
The international human rights project also needs to take full cognisance of the role played by technology in the context of demonstrations, and ensure that it stays on top of the game. As is often said, technology is not inherently good or bad – it is a tool that can be used for either purposes. The rules of engagement of demonstrations should harness the positive effects of technology and preclude the negative ones.
In the context of demonstrations, one of the most important applications of technology lies in the field on less-lethal weapons. While the advent of less-lethal weapons has in many respects had positive effects – allowing police where they are justified in using force to achieve the same result in a less injurious way – it also presents problems.
Police using such weapons often operate with a false sense of security or license. Even though they are an improvement on lethal weapons, less-lethal weapons can in fact cause serious injury or death, or the threshold for their use is so low that the cumulative level of their increased use leads to a rise in the overall level of repression in society. Moreover, there is little regulation of new ‘less-lethal’ technologies, but a huge market. A system to ensure that law enforcement officials who use these technologies are aware of and can mitigate their risks is required.
A careful approach is likewise called for in the case of technologies that can enhance accountability but can be overly intrusive, such as body-worn cameras.
The implications of using unmanned weapon platforms in the context of demonstrations also requires serious attention. Unmanned systems include remote-controlled platforms for the use of force (armed drones) as well as autonomous weapons (where computers control the release of force), which can be used to disperse less lethal or lethal force. There can be little doubt that pressures to use them in demonstrations will evolve as they become more common in other security-related fields.
Although they present serious risks of abuse, which must be addressed, it seems to me difficult to say that armed drones can as a matter of international law never be used in policing, for example in a hostage situation. However, in the context of the policing of demonstrations, it may be necessary to be more restrictive. Police have a duty to facilitate peaceful protest, and the presence of armed drones in such a context can be a serious disincentive to exercise this right. Even where the use of force may be justified, doing so via a drone seems to be more akin to herding animals than dealing with human beings with a right to dignity. This mode of delivery may be adding insult to injury – and in fact it may escalate the situation. Moreover, the police have a duty to protect people even during demonstrations, and cannot do so if they control the situation from a remote location.
There are also good reasons not to use fully autonomous weapons at all in law enforcement. This form of delivery entails that a computer with artificial intelligence or machine learning, to the point that there is no longer meaningful human control, determines whether force will be released. Some of us have argued that full autonomy in force delivery has no role to play in armed conflict, but there are opposing views. I would venture to say that there should not be any uncertainty about the fact that they should not be used in any law enforcement situation.
Exploring the different dynamics of demonstrations
There is a need for fuller conceptual engagement with demonstrations by researchers. There needs to be a fuller exploration of the foundations of this right, to ensure that it can better weather the storms that it will encounter. For example, the right of peaceful assembly is often presented as a manifestation of freedom of expression, and as a result it can be subjected to the same limitations. While there is considerable overlap, it seems important also to emphasise the differences between these two rights. Freedom of assembly is not merely a species of the broader right of freedom of expression – it is a distinct right with its own dynamics and justification.
Peaceful protest is quite specific in the sense that it entails the concrete, physical presence of the person involved – the salience of the message you convey lies in the fact that you are part of the gathering, not somewhere else. You are not only talking the talk, you are also walking the walk. Demonstrators do not only inhabit the marketplace of ideas but they have entered the real marketplace. And it is normally exercised in collaboration with others – as part of a collective.
It should thus be recognised that while many demonstrations are merely expressions of solidarity and pose no threat to the state, they can potentially present a powerful challenge to the state. However, the argument needs to be made that this is a risk worth taking; for example, because it can make other even more serious threats to the system unnecessary and because it stimulates human engagement as opposed to apathy – and in order to thrive, societies need people with agency and responsibility.
Moreover, there is plenty of room for more multi-disciplinary collaboration in this field. Not enough people who work in this field are taking notice of the psychological and sociological studies that have given more insight into the dynamics of demonstrations. More can be done to use ICTs to provide police trainees with simulations of crowd situations, to help prevent over-reactions when they encounter real-life situations.
These are some ideas about the unique nature of demonstration, but there are clearly many opportunities for others to enter the debate.
Demonstrations have come to play an important role in modern democratic discourse. It is an important means of political participation and engaging with some of the big issues of our time. The fact that people engage in the political process through demonstrations means that there is more influence on, and there should thus be more ownership of, the eventual outcomes, even if particular instances of demonstration become quite heated. Much will depend on whether we find principled, responsive and innovative ways of ensuring that the forces at work when this happens are allowed to play a meaningful role in shaping our shared future.
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