Relevant Aspects of the IACHR Report «Protest and Human Rights»

Javier A. de Belaunde*

The Office of the Special Rapporteur for Freedom of Expression of the IACHR published its report «Protest and Human Rights» in December 2019. It appears timely when massive demonstrations are being held in the streets and squares across the region. The reasons behind the demonstrations vary, but the response of most governments is common: repression and human rights abuses. Peaceful protest remains a misunderstood right. This report aims to correct this situation by defining the inter-American standards applicable to protest and denouncing the criminalization of protest as an anti-human rights process.

Protests are individual or collective forms of action that express ideas of dissent, demand, denunciation or vindication (para. 1). They can adopt different forms, the most common: marches, assemblies, roadblocks, cacerolazos, vigils, strikes, occupations, etc. (paras. 8-9). IACHR understands protest as a right derived from freedom of expression, assembly and association (paras. 18-20). This is, as an instrument linked to participation in public affairs and, therefore, as a core element for democracy. Under this framework, protest should not be considered a disruption of public order that ought to be silenced in any case and at all costs (p. 1, paras. 14-15, 23, 28).

In face of protest, the central role of the State is to guarantee and facilitate its realization, and to protect demonstrators and third parties (paras. 10, 28, 159). This main objective is neglected when the institutional effort is oriented towards confronting the protesters (par. 95). Dialogue and negotiation approaches should be preferred (par. 181-182). In fact, the space for legitimate restrictions is narrow. Any limitation must pass the scrutiny of a proportionality test, which is that it must: be provided for in law, pursue a legitimate aim, and be necessary in a democratic society (para. 33).

One of the contributions of the report is to establish guidelines regarding common situations that arise in the context of protest. Some of the most important standards of the report are:

• Who protests, decides. Content, message, form and place are to be decided by protestors. There is a presumption in favor of all kinds of expression. The exception is war propaganda and hate speech that constitutes incitement to violence on discriminatory grounds (paras. 63-70, 73).
• Public thoroughfares and squares are privileged spaces of protest. The permissible restrictions are exceptional and must be used to protect life, integrity or freedom. The chosen place is a substantial component of what is meant to be communicated (para. 75). Demonstrations, roadblocks or obstructions of public roads should not be criminalized per se (paras. 187, 196, 208-209).
• Protests may involve disruptions, nuisances or inconveniences. Daily routines such as freedom of movement and transit could be legitimately altered (paras. 41, 86-87, 154). Protests constitute as legitimate a use of public space as any other (para. 72).
• Vulnerable, discriminated and excluded groups of society justify greater tolerance. Since they have no other ways to communicate their demands, lack representation, are curtailed from institutional channels of complaint or cannot access the media. Among others, the report considers: indigenous peoples, impoverished sectors, migrants, population of African descent, women, LGBTIQ people, people with disabilities and children and adolescents (paras. 13-16, 23-25, 51-52). Restrictions on protest should not reinforce discrimination against these groups (paras. 46, 192).
• Protest does not require prior authorization. This would amount to prior censorship (par. 203). At most, prior notice may be required for large gatherings for the sole purpose of planning services, protection and mitigation (paras. 56-59).
• Failure to give prior notice does not justify preventing the protest. Nor does it enable its dissolution or constitute a basis for sanctions. The State is obliged to guarantee even spontaneous protests and unexpected changes of locations and routes (paras. 60-62, 93-94).
• The protected protest is peaceful and unarmed. The State has the obligation to prevent violence. It may sanction or restrict the right to protest of individuals who engage in violence or carry weapons (par. 81-82, 214). The demonstration cannot be deemed nonpeaceful based on the violent acts of a few people (para. 83).
• Irresponsibility of organizers. They should not be held responsible for acts of participants or third parties (para. 364). The provision of basic services like traffic management, medical assistance and cleaning is the responsibility of the State (para. 163).
• The dispersal of a demonstration is only justified to protect people. It does not validate the use of force, there must be a serious risk to life or physical integrity and no less harmful measures available. It never validates the use of lethal force (paras. 112, 115, 153).
• The use of force is the last resort. It should be aimed at preventing more serious occurrences than those caused by the State reaction (paras. 102, 105). It should be regulated by law and qualitatively and quantitatively limited (paras. 85, 103).
• The use of force should be moderated, progressive, proportional and differentiated. Response should aim to reduce to a minimum harm or injuries, and be according to the level of cooperation, resistance, or aggressiveness and to the circumstances such as the danger of the threat (paras. 106, 110). The principle of absolute necessity requires the use of less harmful means and the implementation of the measures strictly necessary to control the danger (paras. 104-110).
• The use of firearms is almost never justified. Only the protection of life or integrity from serious and imminent threats legitimates its use. Firearms should be excluded from policing protests. It may be justified to set them outside the radius of the protest for prevention of extreme cases (paras. 116-118). For its part, the “non-lethal” or less lethal armament must be regulated, not only with respect to what is acceptable, but also with respect to its use and correct use to avoid, for example, the firing of teargas to the body (paras. 122-127).
• Armed forces should not participate. They are equipped and trained for other situations, and their participation generates a risk of human rights violations (paras. 173-180). States of emergency do not justify their involvement (para. 325).
• Protests rarely justify states of emergency. Declarations of states of emergency must meet Inter-American standards requiring an extremely serious situation that endangers the life of the nation and cannot be resolved without suspending rights (paras. 321-329).
• Arrests and detentions must meet standards. They cannot be indiscriminate or en masse (paras. 138, 229, 274) and should comply with legal requirements (para. 133). Detainees must receive humane treatment and the State must assume responsibility for their integrity (paras. 130, 140, 271). To prevent abuses, detainees must have access to legal counsel (paras. 140, 230) and a judicial review of the legality of their detention without delay (para. 137). A public record of persons taken into custody must be available (para. 140).
• Security forces must be organized under an accountability culture. This is in order to prevent violations and impunity (paras. 247, 253). Operations policing protests must be monitored and recorded, and the information preserved and publicly accessible (paras. 99, 248, 304). That information should include internal protocols, record of orders, participating officials, communications, use of force incidents, all audio and video recordings, detailed weapon and ammunition pre- and post-operation inventories, and relationships with private companies (paras. 170, 172, 248, 250, 310-317). Officials should be wearing visible personal identification (paras. 171, 238-239) and can be recorded by the press, protesters or third parties, such material cannot be confiscated without procedural guarantees (para. 308). Human rights violations ought to be investigated and punished administratively and judicially (paras. 246, 249-250, 275, 359). Officers investigated should not take part in new protest operations until their responsibility is clarified (para. 316).
• States must also protect its security forces. Officials should have adequate equipment, including protection and training (paras. 98, 164). Specific and clear operational protocols must be set for protests (para. 158).
• Gender perspective must be incorporated. Including special training and protocols for gender-based or sexual violence (para. 272).
• National human rights institutions should monitor protests. They fulfill a key role of monitoring and documentation of information, and must have the power to file complaints (paras. 289-290).
• The press must be protected. The State should provide specific protection policies to prevent violence against journalists and media workers (paras. 292-293). Journalists should not be harassed, detained or their equipment or material seized or destroyed (par. 356).
• The internet is protected both as a dissemination tool and a virtual meeting Standards of freedom of expression, association and assembly apply (para. 296). It must be available before, during and after protests without unlawful restrictions (paras. 295-298).
• Public officials should not stigmatize protesters and their organizations. Due to their visibility and power, they must refrain from making statements that may inhibit peaceful protest, place demonstrators at greater risk and vulnerability, affect the presumption of innocence or abridge judicial independence (paras. 240-244, 287).
• Duty to not criminalize protest. The punitive power of the State should not be used to deter, punish or prevent the right to protest (par. 188). The application of criminal law to protesters must be very exceptional and is subject to strict scrutiny (paras. 185, 214-221). Vague, broad or extensively applied criminal measures are unconventional (paras. 195). Criminal law should not punish activities typical of protest that by themselves do not affect life, safety or freedom (para. 208).

Under these standards, it is not surprising that the IACHR issued a preliminary report [only available in Spanish] on its recent visit to Chile condemning the actions of the State during social protests and recommending comprehensive police reforms in order to meet international standards and incorporate mechanisms of accountability. In that country, protest management during the ongoing social unrest has been manifestly unconventional, with serious and multiple human rights violations. Professor Claudio Nash summarizes it well: «Since ancient times, humanity has not seen such use of blindness as an instrument to silence citizenship.»

Even without commonly reaching those levels of brutality, very few States in the region comply with inter-American standards when managing protests. As is precisely outlined in the report, steps must be taken so that those standards are observed. In this effort, the Special Rapporteurship, civil society and human rights defenders have a key role to play in disseminating information and demanding accountability, so that one day protest might be finally understood as part of democracy.

*LL.M. King’s College London and M.A. on human rights University College London.

Photo: Vivian Morales C./Flickr