This module is a resource for lecturers
Topic seven: The use of force during assemblies
The right to assemble peacefully, including to engage in peaceful protest, is a fundamental human right integral to any democracy, and an essential component of violence prevention. An assembly is generally understood as an "intentional and temporary gathering in a private or public space for a specific purpose". It "could take the form of demonstrations, meetings, strikes, processions, rallies, or sit-ins with the purpose of voicing grievances, aspirations, or celebrations" (UN Special Rapporteur on Peaceful Assembly, 2012, para. 24).
Under international human rights law, a series of rights coexist under the umbrella concept of a right to protest. These rights are, most notably, the freedom of peaceful assembly, of association, and of expression, and the right to hold opinions "without interference" ( International Covenant on Civil and Political Rights, GA Resolution 2200A (XXI), Art. 19(1), (2), 21 and 22). In all instances, and whatever the legal status of any given assembly under domestic law, participants are entitled to respect for their fundamental rights: to life, to humane treatment, and to liberty. No one may be arbitrarily deprived of life or liberty, and adverse distinction in respecting and protecting rights, for example based on colour, gender, or social status, may amount to unlawful discrimination. Any form of torture or other inhumane treatment is always prohibited.
In March 2016, in responding to a report on the issue by two United Nations Special Rapporteurs, the Human Rights Council recalled "that all States have the responsibility in all circumstances, including in the context of peaceful protests, to promote, respect and protect human rights and to prevent human rights violations, including extrajudicial, summary or arbitrary executions, arbitrary arrest and detention, enforced disappearances, torture and other cruel, inhuman or degrading treatment or punishment, and sexual violence, and calls upon States to avoid the abuse of criminal and civil proceedings or threats of such acts at all times" (Human Rights Council, 2016).
In addressing the use of force during assemblies, the 1990 Basic Principles distinguish between three types of assembly: those that are lawful and peaceful; those that are unlawful but non-violent; and those that are violent.
Lawful and Peaceful Assemblies
According to Basic Principle 12, everyone is allowed to participate in lawful and peaceful assemblies. By "lawful" the drafters of the 1990 Basic Principles meant legality under domestic law as opposed to international law. In such cases, where the authorities have granted permission for an assembly, the task of law enforcement is to facilitate the assembly, including a peaceful protest. Law enforcement authorities should also "as far as possible, protect and facilitate spontaneous assemblies, as they would any other assembly" (UN Special Rapporteurs on Peaceful Assembly and on Summary Executions, 2016, para. 23).
Whether the fact that a substantial number of participants in a given protest carry weapons for self-defence or for ceremonial reasons precludes an assembly from being considered peaceful is not settled under international law. Arguably, if such weapons are not visible and do not include firearms or knives, the assembly should still be considered peaceful, if no violent acts occur.
Unlawful but Non-Violent Assemblies
Principle 13 of the 1990 Basic Principles governs the use of force in respect of unlawful but non-violent assemblies: "In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary." This category is especially contentious given uncertainty on the scope and definition of the term "unlawful". It also suggests that the appropriate law enforcement response to such an assembly is its dispersal. Arguably, the evolution of international human rights law since 1990 renders dispersal of a non-violent assembly to be generally unlawful, unless there exist objective grounds for its dispersal (i.e. necessity) and the measures taken are also proportionate.
The fact that the authorities may not be entitled to disperse a given assembly does not preclude the police from lawfully arresting and detaining suspected criminals from among the participants and bystanders. As United Nations Special Rapporteurs have observed, "The authority to arrest can play an important protective function in assemblies, by allowing law enforcement to remove from an assembly individuals who are acting violently" (UN Special Rapporteurs on Peaceful Assembly and on Summary Executions, 2016, para. 44). Thus, they argue that: "Before countenancing dispersal, law enforcement agencies should seek to identify and isolate any violent individuals separately from the main assembly and, differentiate between violent individuals in an assembly and others. This may allow the assembly to continue" (UN Special Rapporteurs on Peaceful Assembly and on Summary Executions, 2016, para. 61).
The case of Florentina Olmedo v. Paraguay (Communication No. 1828/2008) before the United Nations Human Rights Committee concerned an agricultural worker, Blanco Dominguez, who took part in a peaceful demonstration in Paraguay in favour of agrarian reform. The demonstrators came face to face with a police barrier and decided to blockade the road. The prosecutor ordered the leaders of the demonstration to unblock the road and told them that if they failed to do so it would be cleared by force. While negotiations were underway, the prosecutor ordered the road to be cleared. The police attack was immediate and violent, and involved use of tear gas, firearms, and water cannon. The police beat many demonstrators, fired indiscriminately at those who were fleeing, and violently broke into and damaged various nearby houses, beating severely any persons they managed to catch. Both metal-jacketed and rubber bullets were used indiscriminately.
Mr Dominguez had been at the head of the demonstration and, along with other demonstrators, had peacefully surrendered to the police, kneeling with his hands up. While he was in this position, an officer of the National Police shot him in the back at very close range. After he fell to the ground, he was hit on the head by the police. After two operations, Blanco Dominguez died on 5 June 2003 (Communication No. 1828/2008, para. 2.4-2.7). In finding a violation of the right to life, the Human Rights Committee reiterated Paraguay's obligation to protect the life of the demonstrators (Human Rights Committee, 2012, para. 7.5).
According to Basic Principle 14, "In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9".
The phrasing of Basic Principle 14 refers to a violent assembly as a whole, rather than to the acts of individual participants. This implies that individuals within an assembly may have recourse to violence without the assembly as a whole being deemed violent. In its 2014 resolution on peaceful protest, the Human Rights Council recalled that "isolated acts of violence committed by others in the course of a protest do not deprive peaceful individuals of their rights to freedom of peaceful assembly, of expression and of association" (UNHRC, 2014, 22 nd preambular para). Thus, the term violent assembly should best be considered akin to major, widespread rioting.
The case of Güleç v. Turkey (54/1997/838/1044) concerned spontaneous and unauthorized demonstrations, shop closures, and attacks on public buildings in the town of Idil. The applicant's son was hit and killed from a ricochet bullet fired by a gendarme to disperse the demonstrators. While the European Court of Human Rights accepted that the demonstration was "far from peaceful" and that this could amount to a riot, the Court held that the authorities should have provided their law enforcement officials with alternatives to firearms to disperse the assembly. The Government had produced no evidence to support its assertion that terrorists were among the demonstrators, and therefore could not justify that there was an imminent threat to life.
Several less-lethal options exist to disperse a riot, such as police charges (whether mounted or on foot), use of tear gas, or use of water cannon. Each has potential dangers both for the user and those targeted. If dispersal is truly necessary, Basic Principle 14 suggests that this might be facilitated by recourse to firearms, but this is not the law today. As the two United Nations Special Rapporteurs noted in their 2016 report on peaceful protest to the Human Rights Council, firearms may never be used simply to disperse an assembly and, of course, indiscriminate firing into a crowd is always unlawful (UN Special Rapporteurs on Peaceful Assembly and on Summary Executions, 2016, para. 60). Firing over the heads of protesters is also unacceptable as it risks killing or seriously injuring those standing behind, for a rifle bullet may kill or seriously injure someone a mile away or even further.
A controversial alternative to dispersal used by certain law enforcement agencies today is containment, sometimes called "kettling". This is where protesters (and often innocent bystanders) are contained within an encircling police cordon.
The European Court of Human Rights has considered the legality of the technique. In Austin v. United Kingdom (No. 39692/09), the Court's Grand Chamber found that the cordon, which lasted for up to seven hours, did not constitute an arbitrary deprivation of liberty pursuant to Article 5 of the 1950 European Convention on Human Rights. The case concerned a challenge to the decision by the Metropolitan Police Service to kettle a group of several thousand people at Oxford Circus in London during May Day protests in 2001. The police, perceiving a risk of violence and disorder (which did occur), imposed a cordon under the common law power to "keep the peace".
In his 2013 report on his mission to the United Kingdom, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association specifically criticized the use of kettling. He was "particularly troubled to hear alarming stories of peaceful protestors, as well as innocent bystanders, including tourists, held for long periods with no access to water or sanitary facilities". Acknowledging the European Court's judgment in the Austin case, he affirmed that this and other relevant decisions in domestic courts "by no means constitute a blanket endorsement" of kettling and asserted that the tactic "is intrinsically detrimental to the exercise of the right to freedom of peaceful assembly, due to its indiscriminate and disproportionate nature" (UN Special Rapporteur on Peaceful Assembly, 2013, para. 36-38).