HR Committee: ARTICLE 19 welcomes General Comment no. 37 on the right of peaceful assembly

ARTICLE 19 welcomes the adoption of General Comment No. 37 on the right to peaceful assembly by the UN Human Rights Committee last week. The General Comment strengthens the protection of international law on the right of peaceful assembly and provides authoritative guidance to state actors, including courts, on the development of policies and adjudication of matters affecting this right. The General Comment 37 comes at a pivotal time marked with people protesting worldwide and expressing their dissent or calling to hold authorities and other powerful entities accountable for their actions.

The General Comment 37, which provides an authoritative interpretation of the protection of Article 21 of the International Covenant on Civil and Political Rights (ICCPR), was formally adopted by the UN Human Rights Committee (the Committee) on 23 July 2020, after over a year of discussions and continued consultations with civil society across the world, including ARTICLE 19. It is the first time when the Committee specifically addressed Article 21 of the ICCPR in a general comment. The text of the General Comment 37 expands on key dimensions of the exercise of the right of peaceful assembly, and spells out the limited circumstances in which the right can be restricted.

Key elements of the General Comment 37

ARTICLE 19 welcomes the General Comment 37 for its progressive and detailed elucidation of international law on freedom of peaceful assembly, in particular the following:

  • Recognising the intersections with the right to freedom of expression: The General Comment 37 recognises not only the fundamental nature of peaceful assembly in its own but also highlights that a failure to respect and ensure this right is a marker of repression. Importantly, it recognises the expressive elements and functions of assemblies, stressing that the realisation of the right of peaceful assembly is only possible through the promotion and protection of the interrelated right to freedom of expression.
  • Recognising the extension of protection of the right to online spheres: The Committee recognised that the protection under Article 21 of the ICCPR extends to remote participation in, and organisation of, assemblies when these activities happen online or rely upon digital services. It stipulates that States must not block or hinder internet connectivity, as well as not interfere with connectivity or access to content. This follows a Human Rights Council resolution on human rights in the context of peaceful protests also passed this month which calls upon States to refrain from “ordering blanket internet shutdowns and from blocking websites and platforms around protests”.
  • Defining peaceful vs non-violent: The General Comment 37 states that although there is an unclear line between “peaceful” and “non-peaceful” assemblies, there should be a presumption of assemblies being peaceful. It sets a threshold that States must meet to determine whether the conduct of specific participants in an assembly may be deemed violent, based on the incitement threshold set out in the UN Rabat Plan of Action. Mere disruption caused by the assembly or isolated acts of violence do not suffice to taint an assembly as non-peaceful.
  • Setting up clear test of restrictions on the right of peaceful assembly: General Comment 37 obliges States to meet the so-called three-part test of restrictions on assemblies. All restrictions must be prescribed by law; pursue a legitimate aim; and meet the strict tests of necessity and proportionality. Blanket restrictions on peaceful assemblies are presumptively disproportionate. Restrictions cannot be grounded on the mere possibility that an assembly may provoke adverse or even violent reactions.
  • Strengthening protection of journalists: The General Comment 37 adds to the wealth of international standards on the safety of journalists and touches on their fundamental role on monitoring and reporting assemblies. It emphasises that the journalists, human rights defenders, election monitors and others involved in monitoring or reporting on assemblies are entitled to protection under the ICCPR. They are protected from prohibitions or limitations in exercising these functions, as well as protection from reprisals, harassment or confiscation and damage of their equipment. Importantly, it stresses out that the right to monitor assemblies does not terminate even if an assembly is declared unlawful or is dispersed.
  • Establishing the right to anonymity during assemblies: The General Comment 37 recognises that anonymous participation may form part of the expressive element of a peaceful assembly and to protect privacy. Hence, face coverings, hoods or masks should be allowed and its use should not be deemed to signify violent intent.
  • Reiterating the rules on use of force and policing of assemblies: The General Comment 37 further cements long-standing international standards on the use of force in policing assemblies and reinforces the current requirements posed by international law, guided by standards such as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the UN Human Rights Guidance on Less-Lethal Weapons in Law Enforcement. It also stresses out that the military should not be used to police assemblies. It focuses, in particular, on the de-escalation obligations of law enforcement and the need for specific training for law enforcement  engaged in policing assemblies.
  • Highlighting the right to use digital technologies in the context of assemblies: The General Comment 37 provides strong language on disruptions to the Internet during protests. It emphasises that State Parties must not “block or hinder internet connectivity in relation to peaceful assemblies” nor instigate “geo-targeted or technology-specific interference with connectivity or access to content”.
  • Elaborating on the intersection with the right to privacy: The General Comment 37 elaborates on the intersection between the rights to peaceful assembly and privacy and addresses the issue of surveillance, including through facial recognition technologies. It emphasises that the use of these technologies “must strictly conform to applicable international standards, including on the right to privacy” and “should be regulated by appropriate and publicly accessible domestic legal frameworks compatible with international standards and subject to scrutiny by the courts”. As relevant as ever, it notes how face-coverings may serve to counter reprisals and protect privacy. This language is bolstered by a recent OHCHR report on new technologies in the context of protests which also addressed the issue of surveillance.

ARTICLE 19 appreciates the efforts of the Committee in developing these standards. We have long asserted that the right to freedom of expression is a fundamental aspect of protest. Across the globe, there are persistent trends of authorities harassing protestors, or even denying whole protests, specifically because of their content and messages, particularly where there is dissent or political opposition. We have repeatedly raised concerns that Governments around the globe have too often treated protests and other forms of assemblies as either an inconvenience or threat, resorting to excessive use of force, arbitrary arrest and detention, Internet shutdowns, mass surveillance, and other forms of unwarranted interference to repress assemblies. From Belarus, to Ethiopia, to the United States, these trends are only growing worldwide.

ARTICLE 19 hopes that States will use the opportunity of the adoption of the General Comment 37 to bring its legislation and policies into full compliance with the guidance provided therein. They should also close an alarming implementation gap between the standards and their implementation in practice. We also encourage non-state actors, NGOs and the media, to support States in these efforts by drawing attention to ways in which State laws and practices fall short of these standards.