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Facilitating Peaceful Protests ACADEMY BRIEFING No. 5 Facilitating Peaceful Protests January 2014 Geneva Academy of International Humanitarian Law and Human Rights Geneva Académie de droit international humanitaire et de droits humains à Genève Academ The Academy, a joint centre of ISBN: 978-2-9700866-3-5 © Geneva Academy of International Humanitarian Law and Human Rights, January 2014. Acknowledgements This Academy Briefing was written by Milena Costas Trascasas, Research Fellow, and Stuart Casey-Maslen, Head of Research, at the Geneva Academy of International Humanitarian Law and Human Rights (Geneva Academy). The Academy would like to thank all those who commented on an earlier draft of this briefing, in particular Anja Bienart and Brian Wood of Amnesty International, and Neil Corney of Omega Research Foundation. The Geneva Academy would also like to thank the Swiss Federal Department of Foreign Affairs (DFAE) for its support to the Academy’s work on facilitating peaceful protests, especially the Human Security Division for its funding of the publication of this Briefing. Editing, design, and layout by Plain Sense, Geneva. Disclaimer This Academy Briefing is the work of the authors. The views expressed in it do not necessarily reflect those of the project’s supporters or of anyone who provided input to, or commented on, a draft of this Briefing. The designation of states or territories does not imply any judgement by the Geneva Academy, the DFAE, or any other body or individual, regarding the legal status of such states or territories, or their authorities and institutions, or the delimitation of their boundaries, or the status of any states or territories that border them. ACADEMY BRIEFING No. 5 Facilitating Peaceful Protests Contents Introduction _____________________________________________________________________________________________________________________________________________________________________________________________________________________________________3 A. The Duty to Facilitate Peaceful Protests: National Legislation ________________________________________________________________________________________________5 Presumption in favour of allowing peaceful protests ______________________________________________________________________________________________________________________________________7 Permissible and unlawful restrictions _______________________________________________________________________________________________________________________________________________________________________8 Notification and authorization procedures _________________________________________________________________________________________________________________________________________________________ 10 Spontaneous protests __________________________________________________________________________________________________________________________________________________________________________________________________ 12 Counter-demonstrations _______________________________________________________________________________________________________________________________________________________________________________________________ 13 Access to public space _________________________________________________________________________________________________________________________________________________________________________________________________ 14 Access to Internet and other communication networks ____________________________________________________________________________________________________________________________ 14 B. Protecting Participants in Peaceful Assemblies: Action by Law Enforcement Officials __________________________________ 15 Contingency plans and precautionary measures ___________________________________________________________________________________________________________________________________________ 16 Communication channels ____________________________________________________________________________________________________________________________________________________________________________________________ 16 Specific training for law enforcement officials on crowd facilitation and human rights __________________________________________________________ 16 Unauthorized protests ____________________________________________________________________________________________________________________________________________________________________________________________________ 17 The peaceful character of a protest must be presumed____________________________________________________________________________________________________________________________ 18 Protests involving acts of violence _________________________________________________________________________________________________________________________________________________________________________ 19 Dispersal of protests _______________________________________________________________________________________________________________________________________________________________________________________________________ 20 General prohibition on the use of firearms _________________________________________________________________________________________________________________________________________________________ 21 Graduated use of force __________________________________________________________________________________________________________________________________________________________________________________________________ 22 Use of ‘less-lethal’ weapons ___________________________________________________________________________________________________________________________________________________________________________ 22 Responsibility of the organizers _______________________________________________________________________________________________________________________________________________________________________________ 24 C. Preventing Unlawful Use of Force and Ensuring Accountability _________________________________________________________________________________________ 25 Planning and prevention measures ________________________________________________________________________________________________________________________________________________________________________ 25 Reporting and review procedures ___________________________________________________________________________________________________________________________________________________________________________ 26 Independent investigation and access to justice ___________________________________________________________________________________________________________________________________________ 27 A Summary of Legal and Policy Recommendations __________________________________________________________________________________________________________________________________ 29 Annex __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 31 Human Rights Council Resolution 22/10 (2013) on ‘The promotion and protection of human rights in the context of peaceful protests’ _______________________________________________________________________________________________________________________________________________________________________ 31 Facilitating Peaceful Protests 3 Introduction Academy Briefings are prepared by staff at the In societies that are experiencing economic hardship Geneva Academy of International Humanitarian or political repression, protests are unavoidable. Law and Human Rights (the Geneva Academy), Peaceful protests should be understood as an in consultation with outside experts, to inform expression of individual and collective freedom government officials, officials working for which is essential to the exercise of personal liberty international organizations, non-governmental and vital to the life of a democracy. A state that organizations (NGOs), and legal practitioners, obstructs or prevents peaceful protests, deems about the legal and policy implications of important them unlawful, or uses force to disperse or deter contemporary issues. them, is not only violating the right to freedom of assembly but also creating conditions that invite Freedom of assembly, and specifically for the violence. It is in the state’s own interest to ensure 1 purpose of protest, is an issue in every state. that protests can occur, and that they can occur Protests involve the rights to hold and express peacefully. opinions and beliefs; to assemble peacefully; and to associate with others. Social protest and At the same time, not all protests are peaceful. mobilization offer people the opportunity to petition In prescribed circumstances, protests and the authorities in a peaceful manner and are natural assemblies may be dispersed, and in even more channels for a wide range of legitimate complaints prescribed circumstances, may be dispersed by and grievances. force. However, in many countries law enforcement officials are frequently accused of using excessive Protests occur in many contexts and are inspired force against protesters. by a highly diverse range of moral, religious,2 political,3 economic,4 social,5 and environmental The use of force to disperse demonstrations has concerns, among others.6 In recent times, very large been attracting increasing international attention. demonstrations have been linked to economic, In 2011, the United Nations (UN) Security Council social,
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