Introduction
The right to protest is under threat across all regions of the world and repression has grown increasingly common. This year, we have seen various examples of this repression in Russia, Iran, Ecuador, and Chad. However, this problem has always been present. During the beginning of the COVID-19 pandemic, we saw how countries tried to limit the freedoms of expression and association. According to Human Rights Watch, at least 83 governments used the “pandemic to justify violating the exercise of free speech and peaceful assembly.” Governments argued that their actions were justified in order to deal with the newly discovered public health threat that was COVID-19. “Authorities attacked, detained, prosecuted, and in some cases even killed [protesters], broke up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech…” Many were protesting their country’s response to the pandemic. However, this wasn’t the case for all protests seen during this time period. For instance, the Black Lives Matter movement and protests seen in the US during the summer of 2020 concerned racial discrimination and police brutality. On the other hand, protests against the systemic corruption and state capture resurged in Venezuela.
Unfortunately, States continue to justify their repressive tactics.
The right to protest
The right to protest encompasses various rights and freedoms, including the freedom of assembly, the freedom of association, and the freedom of expression. International instruments, like the International Covenant on Civil and Political Rights (ICCPR), delineate and define these freedoms. According to Article 19 of the ICCPR, everyone has “the right to hold opinions without interference.” It also provides that everyone has the right to freedom of expression, which includes the freedom to seek, receive, and impart information and ideas freely. Article 21 recognizes the right to a peaceful assembly and Article 22 defends the right to freedom of association with others. All three articles do, however, mention some exemptions. Articles 21 and 22 state that “no restrictions may be placed on the exercise of this rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”
Because of COVID-19, States were relying on these clauses to limit protest rights, saying that these practices endangered public health. Seeing this, the United Nations issued a communication highlighting the States’ duties to respect these rights and reminding States that restrictions or limitations on rights based on public health concerns were justified, but only under certain circumstances. However, to uphold the rule of law, derogation of rights made in light of emergency circumstances must be in accordance with the principles of legality, necessity, proportionality, and non-discrimination. Even though some rights can be derogated in times of emergency, as seen on Article 4 of the ICCPR, derogations must still follow the previously mentioned principles.
National constitutions vs. International Instruments
Even though most of these rights and freedoms are stated in national constitutions, States still continue to violate international law and standards, as well as national obligations. For example, the right to peaceful assembly is inscribed in Russia’s constitution, but laws have been modified to restrict this right. For instance, “[b]ack in 2015, legislation was reviewed to make participation in protests punishable with up to five years [of] imprisonment.” Russia is a member of the international community and participant in international bodies like the United Nations – still a member of the Security Council – who also has the obligation to follow customary international law. Russia, for instance, has an obligation to respect this right because it is a signatory to the ICCPR. However, we have seen how hundreds of journalists have either been detained, abducted, or tortured for reporting on the war in Ukraine or protests about the war. “Journalists, lawyers, and Russian dissidents [have] been targeted, murdered, or detained by Russian forces.” These repressive tactics have been so common that the Human Rights Committee has raised “a number of concerns as regards excessive and disproportionate restrictions of rights, including freedom of expression and assembly of journalists, political dissidents, lawyers and human rights defenders, and closure of media outlets and websites.” Committee Experts have also raised concerns about reports of extrajudicial and prolonged arrests, ill-treatment in detention as well as the lack of independence of the judiciary. Finally, the Committee called on Russia to review its legislation and practices, because the rights protected under the ICCPR are not being respected.
Another example is Colombia. Article 38 of the Colombian Constitution states that “the right of free association is guaranteed for the development of the different activities that people carry out in society.” According to Colombia’s Constitutional Court’s Sentence no. T-003/94, the right of free association is a fundamental constitutional right. However, last year, the world saw the Colombian government’s response to nationwide protests. The public organized massive demonstrations and rallies to show their “discontent over a tax reform proposal, the economic and health crises in the context of COVID-19 [as well as] the increase in massacres and assassinations of social leaders and human rights defenders across the country.”
Starting on April 28th, 2021, agents of the Colombian forces were seen exercising excessive use of force in protests. Disproportionate use of firearms and military interventions started as soon as a week after the protests began, resulting in deaths, arbitrary detentions, prosecutions, acts of sexual violence, disappearances, wounded, reports of police violence, and continuous aggressions against human rights defenders and members of the press. Because of this, 650 civil society organizations called for an exhaustive investigation of the repression of protests and called for the Inter-American Commission on Human Rights to visit the country and create an independent expert mechanism to support the investigation of the events.
States must respect, protect, and guarantee human rights in contexts of protests. States are obligated to follow the principles of necessity, proportionality, and precaution when it comes to the use of force. The use of force must be used “only when no other means that protect the right to life and personal integrity exist, and be proportional to the existing danger.”
Repression today
States continue to justify and practice repression, mostly relying on excessive use of force, arbitrary detentions, disappearances, and many other tactics.
In February 2021, Human Rights Watch published its review of national government responses around the world to the COVID-19 pandemic. It found that many unlawfully interfered with the freedom of expression, including countries like China, Cuba, Egypt, India, Russia, Turkey, Venezuela, and Vietnam. According to their findings, “military or police forces in at least 18 countries physically assaulted journalists, bloggers, and protesters.”
“Authorities in at least 10 countries arbitrarily banned or broke up protests against government responses to COVID-19, in some cases citing social distancing concerns, or have used COVID-19 as a justification to disperse protests and other gatherings critical of government policies unrelated to the coronavirus.”
For instance, in March 2020, Egyptian security forces arrested novelist Ahdaf Soueif and three other women after they protested demanding the release of prisoners over fears of a COVID-19 outbreak in overcrowded jails. In April of the same year, Egyptian police arrested people as they dispersed a crowd in a Nile Delta village protesting against the burial of a COVID-19 victim.
However, since the pandemic has started to become more manageable, justifications relying on public health have decreased. Repression, unfortunately, has continued and even increased.
On a separate note, the Ecuadorian President Guillermo Lasso’s economic policies increased food and fuel prices triggering protests around the country. Manifestations began on June 13, 2022, initiated by indigenous activists, particularly the Confederation of Indigenous Nationalities of Ecuador. Later on, students and workers joined, and now President Lasso has condemned these protests and has labeled them an attempted coup d’état. Soldiers and riot police fired tear gas and pellets at protestors, indiscriminately and disproportionately.
On June 28, the UN Child Rights Committee expressed deep concern over the use of violence against children by the Ecuadorian security forces during the protests. The Committee, as a response, welcomed the lift of the state of emergency that the President imposed and talks between Government officials and indigenous peoples; but also demanded that the State immediately and completely cease the use of force. It also urged immediate investigations into reported incidents of excessive use of force. Government authorities and Indigenous leaders reached an agreement on June 30. “Five civilians and one member of the military died and over 300 people [were injured], according to local human rights groups.” However, this year’s protests were just a reoccurrence, previous protests in 2015, 2019, and 2020, had the same issues of repression. All of this has taken place even though Ecuador’s most recent constitution assures the rights and freedoms previously discussed.
The Ukraine invasion and the mobilization of troops have stirred protests in Russia. As of the 26th of September, about 2,377 demonstrators had been arrested solely for exercising their right to protest. After these events became known to the international community, the UN Office of the High Commissioner for Human Rights (OHCHR) called on Russia to immediately release those arbitrarily detained solely for exercising their rights and to abide by their international obligations to respect and ensure these rights. The OHCHR also urged the people to protest peacefully and avoid resorting to violence.
Finally, another recent example is the protests now taking place in Iran since September 16th. On September 13th, a 22-year old Iranian Kurdish woman named Mahsa Amini was arrested by the morality police in Tehran for wearing an “improper” hijab, violating Iran’s mandatory hijab law. Eyewitnesses reported seeing her being violently beaten in a police van; hours later she was taken to a hospital where she was in a coma for three days and died on September 16th. The morality police have been known for arbitrarily detaining and torturing women for not complying with Iran’s compulsory veiling laws.
Conclusion
The right to protest includes the freedom of assembly, association, and expression. Even though these rights or freedoms may not be delineated in national constitutions, States are still obligated to respect them. Customary international law, as well as international and regional treaties, highlight the importance of respecting, protecting, and allowing the practice of these rights as long as they are done in a peaceful manner. Repression of these rights constitutes a violation of international law and a violation of human rights law. Even though some States continue to violently silence their citizens, the international community is seeking to hold them accountable. Some tactics of repression are more outrageous than others, yet none is acceptable. Some States limit their citizens freedom of expression by nationalizing news sources or only allowing news to be published by government approved news sources, like Russia. Other States repress the right to protest by exercising excessive use of force when disrupting manifestations or by having military officers participate.
The international community and systems, as well as regional systems or civil society, can hold States accountable. We saw this in the US during the Black Lives Matter Movement. Civil society organizations, both local and international, condemned the US’ racial discrimination and police brutality. We also saw it with Colombia, when civil society organizations called for the Inter-American Commission on Human Rights to visit the country. The Commission in July published its report, along with its observations and recommendations. Even though then-President Duque rejected some of the findings, it still showed how international and regional bodies can help hold States accountable. It also showed the public and international community’s power. Colombia was being shamed internationally for videos, news, and information Colombian citizens were showing. Now thanks to how easily information can be shared through social media, there is likely more proof of these repressive tactics and the international community can intervene faster.
Author Biography: Sabrina M. Rodríguez is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She has a Bachelor of Arts in Political Science, with an emphasis in International Relations, and a second concentration in French from the University of Puerto Rico, Río Piedras Campus. She is a joint-degree student, also pursuing a Master’s in International Affairs, with an emphasis in International Security Studies, at the Elliott School of International Affairs.