“Last year, with the world in the grip of the COVID-19 epidemic and Black Lives Matter protests in many countries, the United Nations completed a process stretching back several years to clarify and define the obligations of states when dealing with the typical kinds of situation that arise during demonstrations,” said Christof Heyns of the Faculty of Law at the University of Pretoria. “In July 2020, the world body published two new international instruments that restate (and, in some instances, state afresh) the international law standards applicable to peaceful assemblies – and to the use of force where they turn violent.”
STIAS fellow Heyns was the main author of both instruments. He explained that in General Comment 37 on the right of peaceful assembly, the United Nations Human Rights Committee provides an authoritative interpretation of the key aspects of the right of peaceful assembly, as set out by article 21 of the Covenant on Civil and Political Rights, while the UN Human Rights Guidance on Less-Lethal Weapons in Law Enforcement is an expert document.
Both documents have been used extensively by the UN as well as courts, police services, non-governmental organisations and others in determining the limits of and appropriate response to peaceful assemblies in countries across the world.
In his seminar, Heyns highlighted the process followed in drafting the documents, gave an overview of some of the issues included, and outlined their broader significance.
He explained that the Guidance on Less-Lethal Weapons represents a supplement to the 1990 Basic Principles on the use of Force and Firearms in Law Enforcement, taking account of technological advances and the increase in less-lethal options – including teargas, tasers, water cannons and audio control. Although deemed less lethal than guns, with excessive use these can still be lethal and can represent a high level of state repression.
Focusing on peaceful assemblies he emphasised their importance. “Peaceful assemblies have become a key way in which people renegotiate the social contract. It’s about them saying ‘I’m here, this is what I think, deal with me’.”
“Mohandas Gandhi during his time in South Africa, – on which a STIAS research project is underway – played a major role in establishing peaceful assemblies as a deliberate tool. He was the first brown-skinned person to take on the British Empire in this way – and win. However, while Gandhi adhered to non-violence as an article of faith, many who do not share the same pacifist starting point have come to use peaceful assemblies as a tool.”
Heyns pointed to historical movements that have used these methods including the Suffrage and Civil Rights movements, protests that ended Soviet-style Communism in the 1980s/90s, resistance to the Iraq War, and the Arab Spring.
“In South Africa, the African National Congress leaders saw non-violence as a useful strategy – which underlined the Defiance Campaign and Rolling Mass Action in the 1980s/90s. This continues today when, before COVID, there were about 12 000 demonstrations per year.”
He also pointed out that former South African President FW De Klerk’s decision in September 1989 to go against the advice of his police minister to cordon off Cape Town and instead allow a mass demonstration of 30 000 people “possibly saved the country from a larger bloodbath. It can be seen as representing the beginning of the acceptance of democracy, a shift in power, in the apartheid state.”
“Peaceful assemblies are often a way or pursuing truth and establishing the extent of support for an idea. They have become a major force in society and an integral part of social change. People without other forms of power use this to address what they see as structural violence – where the system itself works against them. Many of the rights we take for granted today came through this kind of disruption.”
He pointed, however, to the importance of some regulation.
“Peaceful assemblies may not always used for progressive causes,” he explained. “For example, anti-LGBTI protests in Russia, and the attack on the US Capitol in January. And even those with good cause can be overdone leading to disruptions like blocking access to schools and hospitals. Assemblies can be volatile and can easily escalate into violence.”
“They are collective gatherings versus the power of the state. Because this is such a potentially disruptive terrain, the different parties need rules of engagement.”
He emphasised that the standards and regulations must be content neutral, cannot be based on a prior understanding of what is right or wrong, but can only outline the procedures and define the rules.
General Comment 37 recognises a wide scope of conduct that falls within the potential protection of the right, and only allowing restrictions where the state can prove or justify these.
He gave the following examples: “Incitement to violence through an assembly is not within the scope of the right and therefore not protected. But hate speech in principle is still non-violent and therefore the state must show good reason to restrict such an assembly.”
The document recognises the right of peaceful assembly and addresses the scope of these rights defining issues like what is ‘an assembly’ and when is an assembly ‘peaceful’; what are the obligations of the state in respect of such assemblies; what are the responsibilities of the organisers; notification versus authorisation; can the authorities determine where collective action may take place; when is police force allowed; and are counter demonstrations protected?
“Looking at the rights and obligations of the state, the Comment makes it clear that the state must not unduly interfere with assemblies and facilitate and protect them where necessary. To ‘facilitate’ means states must make it possible for assemblies to happen by closing streets etc., and participants must be protected against counter demonstrations.”
“If the state genuinely does not have the capacity to do this – then it must allow for less-intrusive assemblies possibly by adjusting the time, place and date, before assemblies may be prohibited.”
Assemblies in the online era
One area that led to extensive debate by the committee and for which Heyns admitted “my mind changed during the process” was the issue of online assemblies like, for example, #MeToo.
“Of course these are exercises of freedom of expression, but are they assemblies? Initially I wondered whether including online assemblies in the scope of the right might trivialise the right. Assemblies are traditionally valued because people make a physical choice to be there. However, when we researched the issue and received submissions, we realised the important role that online collective interaction plays in the modern world. We have to recognise the new world and can’t plunge law back into the pre-online era. Tellingly, just after having taken the decision to support the inclusion of online assemblies as being protected by the right of peaceful assembly, the Committee had to abandon its physical activities due to COVID-19 and itself go online. This is one of the reasons why I’m happy we decided you cannot make a distinction between online and offline assemblies.”
“To some extent I’m still trying to get my head around the implications of online assemblies. Tension builds online, there isn’t the release of tension that a physical gathering entails. Letting off steam is a reason to allow physical gatherings, but does this apply to the same extent to online assemblies?”
Responding to the question of whether online assemblies are not always by their very nature peaceful, Heyns said they can in principle take the form of cyber-attacks, but more pertinently, they may be used to incite violence, and such assemblies will not be protected.
“The Comment identifies the scope of the right widely and allows only limited restrictions. But some states could abuse the provisions – this remains an issue.”
He pointed out that the documents have been well received but with some criticism.
“The Comment, in particular, is a very high-level document – the UN only allows 10 700 words so it cannot describe everything in detail and is thus vague in some respects.”
Areas that have received criticism have included the recognition of the fact that private property may under some circumstances be used for gatherings.
He concluded by pointing to the broader picture. “Violence has declined over the last centuries. Less than 1% of people now die violently. The emergence of peaceful assemblies may be a result of this safer environment, and in itself may have contributed to this decline, in particular because they offer a way of addressing structural violence in a peaceful way. Some researchers claim that non-violent resistance is twice as effective as violent resistance. Unless you are a pacifist violence always remains an option – but one that becomes weaker if non-violent options exist.”
“The challenge is to translate the international standards into domestic law and practices which add to the overall reduction of violence in societies.”
“These documents have the potential to reshape the landscape,” he said, “but they must be domesticated – via the courts and civil society – or they will remain up in the air.”
Michelle Galloway: Part-time media officer at STIAS
Photograph: Anton Jordaan