By Laura Kauer García
Laura Kauer García is a human rights professional, writer, and translator. Previously, she worked for the new initiative Artists at Risk Connection (ARC) of PEN America, providing urgent support to threatened artists, and worked at Human Rights Watch. She is pursuing an MA in Understanding and Securing Human Rights with a Latin American Pathway at the School of Advanced Studies of the University of London. Her research focuses on the right to free expression, the right to protest, and threats against human rights defenders, including artists and cultural practitioners. She was born and raised in Buenos Aires, Argentina, but has lived in Washington DC, NY and is now based in London.
On 23 July 2020, the Human Rights Committee adopted the General Comment No. 37 on Article 21 of the International Covenant on Civil and Political Rights (ICCPR) regarding the right of peaceful assembly. Following extensive consultation and collaboration with academic, civil society, and NGO experts, it would have been impossible to predict that the final document would be approved and published at a more critical moment. The United Nation’s 129th session was held online as governments around the world struggled to mitigate the spread of COVID-19, implementing measures varying from travel restrictions to full-country lockdowns and emergency measures. Despite the almost universal restriction on large gatherings, massive protests have taken place during the pandemic world-wide in response to police violence, ineffective COVID-19 measures and their economic consequences, and an array of other issues. In many instances, protesters were met with brutal responses from law enforcement, bolstered by exceptional measures in place under COVID-19. Such abuses of emergency measures and disregard for the right to protest in places like Chile, Hong Kong, United States, Kenya, and Belarus, to name only a few, highlight the timeliness and relevance of the GC37, but also how far we still are from a universal agreement on this fundamental human right.
General comments are meant to serve as authoritative interpretations of the legal obligations UN member states have once they accept being bound by the ICCPR. They generally take several years to draft and review, as the Committee in charge seeks to address the most prevalent concerns regarding the respect, protection, and facilitation of a specific right, while ensuring the document has long-term relevance. The process for the GC37 began during the 125th session, on 20 March 2019 and included two public readings for stakeholders to provide input, and regional consultations in Mexico, Thailand, Poland and Johannesburg, before it was published in mid-2020.
Although the GC37’s page includes links to member State comments and numerous expert submissions, the document limits its in-text references to other UN jurisprudence, standards and guidelines. The sheer number of documents and tools produced in the last decades are evidence of the concern international and regional bodies have for the right to peaceful assembly, and how complex it is. The African Commission on Human and Peoples’ Rights adopted its Guidelines on Freedom of Association and Assembly in 2017, OSCE/ODIHR’s Guidelines on Freedom of Peaceful Assembly (3rd edition) were published in 2019, and the Inter-American Commission of Human Rights (IACHR) published its Report on Protest and Human Rights the same year. Since the GC37 needs to limit its incredibly in-depth analysis to Article 21 so it does not become unwieldly, it addresses other major concerns and interrelated rights by highlighting existing resources. Expertise on freedom of opinion and expression can be found in references to the General Comment 34 and a 2016 report between the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies. Since the right of peaceful assembly is not an absolute right, the derogation framework is addressed in the General Comment 29 on State of Emergencies and the 1984 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. Important guidance also exists regarding the role of law enforcement in assemblies, the most recent being the UN’s 2019 Human Rights Guidance on Less-Lethal Weapons and Related Equipment.
Building on this strong base of work, the GC37 marks one more step, a significant milestone, in the international human rights community’s fight for a fully realized right to protest. The document further recognizes that an effective right of assembly is critical for “a system of participatory governance based on democracy, human rights, the rule of law and pluralism.” It drives further the point that protests should not be seen as threat by governments, but rather as a healthy part of a functioning society, a legitimate use of public and private space, and an invaluable tool for underrepresented and vulnerable groups. The right of peaceful assembly is a foundational right that can only be achieved through the respect and assurance of interrelated rights such as the right to opinion and free expression. Special emphasis is placed on the important role played by journalists, human rights defenders, election monitors, and other monitoring mechanisms and their entitlement to protection under the ICCPR even if an assembly is deemed unlawful. Although these are positions that have been mentioned in previous reports by Special Procedures, guidelines, and relevant general comments, the GC37 brings further recognition to these interpretations and normative weight to a global standard a majority of countries have made a commitment to through the ICCPR.
In other areas, the GC37 serves to spearhead new issues related to the right of assembly. Of particular importance in a period of socially distanced gatherings, the GC37 recognized for the first time that the protection of the right of assembly extends to the planning and conducting of protests online. The recognition makes government actions such as shutting down the internet as seen in Ethiopia in early 2020 or blocking access to certain apps or websites as a clear failure of their human rights responsibility. The document also brings to date the conversations in terms of new technologies that can advance or pose a challenge to the right of assembly. In particular, it makes reference to a new OHCHR report on the usage of facial technology when addressing the importance of respecting individuals’ right to privacy even in assemblies in public locations. It goes further and recognizes the right to anonymity and makes it clear that the use of masks, hoods or other items to hide one’s identity by assembly participants cannot be interpreted as proof of violent intent. A lot of the discussions during the drafting process centered on the language around the responses to assemblies by law enforcement, in particular when using force, employing less lethal weapons, the military or even plainclothes police. The one area that it left absolutely clear was the need for police to prioritize and lead de-escalation efforts, and to exhaust all peaceful remedies before resorting to only the absolutely necessary and proportional use of force.
Despite the significant changes made since the first draft, the last rounds of comments from outside stakeholders still showed a lack of consensus on many important aspects of the GC34’s language. In some instances, the final version fell short of some of the recommendations made by civil society groups. A lively discussion regarding the definition of violence led the GC34 writers to admit that a fine line can exist between peaceful and violent assemblies and to stress that a peaceful demonstrator does not lose their right to protection because of isolated instances of violence. However, “damage of property” remained one of the two key factors, on par with “serious injury to a person”, to determining if an assembly is peaceful and thus deserving of protection. Critics worried that the language could be used by governments to criminalize protesters (as has recently occurred in Chile and the United States), noting that “damage to property” was first introduced as a concern in the Siracusa Principles, but was not mentioned in relevant special procedure reports.
Another area of concern for many NGOs was the recommendations around the use of less-lethal weapons. Despite the extensive work done both by the UN and NGOs regarding less-lethal weapons, the GC34 limits itself to saying that force should be used as a last resort, without a stronger condemnation of the use of less-lethal weapons nor a full acknowledgment of the indiscriminate, serious and sometimes fatal effect they can have. No language was added asking for independent oversight of the types of less-lethal weapons allowed, methods used, nor did it make the case for the importance of independent investigations when they are misused. There many other concerns raised in feedback sessions regarding the use of private space, the instrumentalization of notification regimes, the use of plains-clothes police and military in assembly management. There definitely was enough to warrant further conversations, but the committee went ahead with presenting the final version before the two-year mark of the process. Perhaps the decision was a nod to the international situation and a sense that an authoritative opinion on assemblies was urgently needed.
When it was decided that the next GC would focus on Article 21, nobody could have foreseen the wave of emergency measures set off by a global pandemic or the spread of anti-police violence and Black Lives Matter solidarity marches. Many of the issues that the GC37 struggled the most to grapple with are the ones that human rights organizations are struggling to protect in these unprecedented times. The ICNL COVID-19 tracker found that more than 86 countries have enforced emergency measures, while 112 countries have measures that affect the right to assembly and 32 that affect free expression. In some instances, like in Hungary and Colombia, civil society groups are concerned that the emergency measures are being used to concentrate power and to skip existing frameworks that ensure derogations are lawful, proportional and necessary. The violent enforcement of lockdowns in Chile, South Africa, Russia, India and use of military for a health emergency presented more risks than the protest themselves, which many times stems from people’s desperation at being unable to cover basic needs. Globally, law enforcement’s response to assembly has been unevenly applied and has highlighted the historical and systematic inequities that lead Black, Indigenous and People of Color communities to be disproportionately affected. In response to the police murder of George Floyd in Minneapolis, USA, anti-racism and anti-police brutality demonstrations were organized in more than 2,000 cities and towns in the US and more than 60 countries. Recent protests in Belarus and ongoing ones in Chile and Hong Kong demonstrate both the importance of the right of assembly to challenge long-term regimes of abuse, but also the difficulty to have states who are parties to the ICCPR to respect their commitment. Many times, when the right of peaceful assembly is the hardest to guarantee, that is when it is most crucial to have and defend.
There is no doubt that the General Comment 37 was published at a time when the world clearly needs a universal standard on the right of assembly. It is a timely, relevant and much needed statement of the importance of the right to protest as a foundational right, but also for the fulfillment of many interrelated rights. Its interpretation builds on an extensive array of reports, guidelines and relevant general comments by international and regional UN bodies and numerous civil society actors. It pushes forward the conversation by introducing more contemporary concerns like the impact of digital technologies, online assemblies, and the right to privacy. However, the unresolved feedback from outside stakeholders on multiple issues, and the ongoing violations of the right of assembly world-wide betray a lack of consensus on the appropriate limitations and responses to protests, especially from law enforcement. Protests continue to be seen as a threat to governments, rather than as markers of a healthy, pluralist society. The criminalization of protesters, the unnecessary and disproportionate use of force by law enforcement, and the disproportionate impact on underrepresented and vulnerable communities, especially in moments of crisis, continue to be global issues. As with many of the UN tools, the challenges in the drafting of the GC37 will probably pale in comparison with the challenges to implement its vision. The General Comment 37 is an important milestone in the global conversation on the right of assembly, but it is unlikely to offer the last word.