International Law and Protest
An Interview with Omer Fisher,
Questions by Sue Basko
INTRO: For the past few months, I have been assisting an international organization with its plans to come to the US to monitor the G8 and NATO protests, as well as to visit a few main Occupy protest cities. The name of the organization is so long that I only just recently can get it right: OSCE-ODIHR - the Organization for Security and Cooperation in Europe, Office of Democratic Institutions and Human Rights.
OSCE-ODIHR sets standards for how police and authorities should act with regard to peaceful public assembly. Protests are considered public assembly. International law sets these standards.
Here, Omer Fisher of OSCE-ODIHR was good enough to answer my questions:
Sue: The materials from ODIHR- OSCE say that only peaceful protest is protected under international law. That brings the question of what is peaceful and what is violence?
Omer: Only peaceful assemblies are protected under international human rights law. Events where participants use violence or where there is compelling and demonstrable evidence that those organizing or participating in the assembly intend to use, advocate or incite imminent violence are not protected under international law. It is important to note that individual or sporadic violence by participants in an assembly does not automatically turn that assembly into a non-peaceful event, which could face restrictions or dispersal (however, action may be undertaken against the individuals responsible for such acts).
Intentional property damage is considered violent behavior. Other forms of protests (for instance involving stopping traffic) are peaceful, as long as participants do not engage in violent acts. Peaceful assemblies may annoy, give offence, and may involve conduct that temporarily hinders, impedes of obstructs the activities of others (e.g. through passive resistance).
Where an assembly occurs in violation of applicable laws, but is otherwise peaceful, non-intervention or active facilitation may be the best way to ensure a peaceful outcome. Notably, a wide range of options are available and the choice is not simply between dispersal and non-intervention.
Sue: Is kettling illegal under international law? Kettling usually leads to people being held for hours without access to a bathroom, without food, water, needed medicine, etc. Is it legal?
Omer: Kettling is not prohibited under international law but, due to its indiscriminate nature and the effects it has on the rights to liberty and freedom of movement, should only be used exceptionally.
International standards clarify the obligations of the state in relation to persons in detention, who should be treated in a humane manner. Inhuman or degrading treatment is prohibited under international law. The authorities must ensure adequate provision of medical care (e.g. first aid), basic necessities (water and food), and the opportunity to consult with a lawyer. Where detention facilities are inadequate to deal with the number of individuals, detained individuals must be freed, unless doing so would pose a threat to public safety.
Sue: What About Use of Tear Gas, Flash Bangs, Rubber Bullets, LRADs, and on?
Omer: In general, the use of force by the police, including during public assemblies, should adhere strictly to the principles of necessity and proportionality. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state that “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”.
Standards on the use of force by the police apply as well to the use of so-called “less than lethal weapons” which might be judged to be legitimate in some situations, but should be regulated through procedures consistent with international standards. This, among other things, means that the use of such weapons should be well controlled, ensuring that they are used only when strictly necessary by police officers who are trained in their use. More generally, such types of equipment should be seen as being towards the end a continuum, which starts from equipment designed to minimize the need for the use of force (i.e., protective gear, shields, helmets, etc.) and then, depending on the threat faced by the police officers or others, may include different types of weapons, disabling chemicals, etc.
Sue: (Here, I asked complex questions about crowd management)
Omer: Some of the questions you asked touch upon operational aspects of policing of assemblies, which would be difficult to comment on without having a complete picture of the specific situation in question. In general, law enforcement officers should not only be skilled in crowd management techniques minimizing the risk of harm to all concerned, but should also be fully aware of and understand their responsibility to facilitate, as far as possible, the holding of peaceful assemblies.
Wearing and using anti-riot gear may be necessary in some cases to protect police officers. Given the potential effect on public perception and community confidence, a widely employed tactic is to deploy police officers in anti-riot gear ready to intervene in locations that are very close to an assembly, but not immediately visible to the assembly participants.
Sue: Please tell us about your organization, OSCE-ODIHR and what you will be doing in the US, in Maryland, Chicago, and other locations.
Omer: The OSCE is the world’s largest regional security organization comprising 56 States from Europe, Central Asia and North America. The OSCE Office for Democratic Institutions and Human Rights (ODIHR) is based in Warsaw, Poland. It is active throughout the OSCE area in the fields of election observation, democratic development, human rights, tolerance and non-discrimination, and rule of law.
Freedom of peaceful assembly is an important area of work for ODIHR. Our Office relies on its Panel of Experts on the Freedom of Assembly to prepare legal opinions on legislation or draft legislation affecting freedom of assembly in our participating states. In addition, ODIHR, jointly with the Venice Commission of the Council of Europe, has prepared the Guidelines on Freedom of Peaceful Assembly, which are intended to provide guidance on the nature of the states’ obligations in respecting freedom of peaceful assembly and on good practices in meeting these obligations.
ODIHR has also worked closely with civil society organizations in a number of OSCE states to train and support them in monitoring public assemblies. Since 2011, ODIHR has deployed international monitors to assemblies across the OSCE area raising particular challenges, with a view to identifying examples of good practices, as well as gaps and problems in regulating and policing assemblies.
A team of ODIHR monitors will be in the US to observe assemblies organized between 18 and 21 May 2012 in connection with the forthcoming G8 and NATO summits. The team will also visit New York, Oakland and Los Angeles to gather information on recent “Occupy” protests. The information gathered during this mission will be used in a report to be published at the end of 2012, which will include the findings from this and similar missions carried out between 2011 and 2012 in a number of OSCE states.
Sue: Please tell me a little about yourself.
Omer: I joined the OSCE/ODIHR as human rights advisor in 2010 and I mainly work on freedom of peaceful assembly. Between 2003 and 2010, I worked at the International Secretariat of Amnesty International in London, first as a researcher on the Balkans, and subsequently as senior research policy advisor.
