Protests: International Standards 2016
by Susan Basko, esq.
The expert panel of OSCE ODIHR has issued Human Rights Handbook on Policing Assemblies, its latest guidebook on international standards for protests. You can download a pdf of the guidebook HERE. Previous versions in earlier years have leaned toward vague and euphemistic wording and idealistic expectations. This 2016 version is more specific and useful, perhaps because of the addition of 10 panelists from police departments worldwide.
On this panel from the U.S., there is Ralph Price, General Counsel of the Office of the Superintendent from the Chicago Police Department. Chicago has an excellent recent track record of large protests with no major trouble. Chicago has also been able to hold huge non-protest events with only minor expected problems. These events have included the November 2016 rally and parade for the Chicago Cubs World Series win, which the City of Chicago estimates had an attendance of 5 million people, making it the largest gathering ever in the United States and the seventh largest gathering in world history. By any measure, this makes the Chicago Police experts at handling crowds. This sort of real world expertise helps make this new guidebook quite useful.
Note: OSCE ODIHR stands for Organization for Security and Cooperation in Europe, Office of Democratic Institutions and Human Rights. OSCE has 57 participating nations on 3 continents of Europe, North America, and Asia.
In this guidebook, "assembly" specifically means a protest of some sort. This guidebook lists "meetings, rallies, pickets, demonstrations, marches, processions, parades and flash mobs." Glaringly absent is almost any mention of camping or tent protests, which have been prevalent worldwide over the past 5 years. Page 13 of the guidebook makes this statement, but fails to call it "camping," and fails to mention tents: "Though they (protests) are usually of temporary nature, they may also last for considerable time, with their semi-permanent structures in place for several months." After this brief mention, the topic of camping as a protest is dropped. In fact, since the Occupy protests, camping protests have become popular worldwide.
Also missing is any mention of a sit-in, which is a short or long term residence inside a building. Another term used for this is occupation. For example, in January 2016, armed protesters at the Maleur National Wildlife Refuge in Oregon took over a lodge-like park office building that was closed for the season. This was called an occupation, an armed occupation, a stand-off.
Camping and sit-in protests involve the occupation and exclusive use of space meant to be shared by others. These protests are often highly effective at galvanizing dissent and thus, may be highly useful to a democracy. They are also where law enforcement most needs to be guided and restrained. If you have been paying attention to the recent police actions against the Standing Rock Sioux Tribe and allied protesters of the Dakota Access Pipeline that proposes to send oil through several U.S. States, you have seen protesters sprayed with water in freezing temperatures, attacked with chemical weapons, and injured with projectiles shot from guns. The "No DAPL" protesters have a huge groundswell of support and appear to be holding ground on land that rightly belongs to their tribe. Yet, stories of abuse by law enforcement against the protesters are cropping up daily. The photos and videos are hard to deny.
Flash mobs are also listed in the "Types of Assemblies" (pg 15), but are only minimally addressed thereafter. This may be because a peaceful flash mob will usually be over and gone before there can be any police response.
Another topic that is missing from the guidebook is the manner of making arrests. This is glossed over. In the U.S., there has developed a widespread practice of police forcing a person to the ground to arrest the person. This has led to many cases of injury and to physical abuse committed by police. The arrestee is often ordered or forced to the ground, usually for no apparent reason. Often, a police officer places a knee into the back of the person on the ground. This surely causes injury to anyone and has been known to cause severe injury and death. Numerous videos show multiple police officers piling onto a person on the ground. Many videos show the person on the ground being kicked, beaten, or even shot (though shooting is usually in individual encounters and not in protest situations.) The method and manner of arrest is an issue of dire, immediate importance in human rights with regard to policing. The guidebook would have been far more balanced if the panel had included those who plan and participate in protests, rather than such a theory-only based panel. It is way past time for any groups interested in human rights to address the manner and method of making an arrest.
Another topic that is missing is the widespread practice of targeting peaceful leaders for arrest. Again, including panelists with real protest experience would have been useful. Leaders of protests are often "picked off" by police in what are essentially random kidnappings. Again, there is often video to show that such arrests come about with no provocation or need.
Another major topic that the guidelines do not address is the jamming or other interference with wifi or phone signals, and/or the use of stingrays to gather data from devices. These actions by police to sabotage personal and journalistic media and communications should be prohibited.
Thus, I suggest that in future versions of such OSCE ODIHR guidebooks on policing for protests:
- That additional panelists be included to reflect a more well-rounded viewpoint, including those who plan and participate in protests;
- That camping protests be addressed;
- That sit-in or occupation protests be addressed;
- That the specific method and manner of arrests be addressed and that police be prohibited from requiring or forcing any person to lie on the ground;
- That the practice of targeting peaceful leaders for arrest be prohibited.
- That police should be prohibited from jamming or interfering with wifi or phone signals or from using stingrays to gather data.
Among the positive highlights of the guidebook as the topics relate to the protesters or those engaged in the assembly , I have found these things (These are being numbered for use in referencing them; they are not in any order of importance.)
1. Freedom of peaceful assembly is a fundamental human right and, as such, is considered one of the cornerstones of a democratic society. (pg 12)
2. That protests often block traffic or cause inconvenience: "Many assemblies will also cause some degree of disruption to routine activities; they may occupy roads and thoroughfares or impact traffic, pedestrians and the business community. Such disruption caused by the exercise of fundamental freedoms must be treated with some degree of tolerance. It must be recognized that public spaces are as much for people to assemble in as they are for other types of activity, and thus the right to assemble must be facilitated. (pg 13)
3. That there must be a balancing act between the different people wishing to use the space: "Where peaceful protest interferes with the rights and freedoms of others it will often be the responsibility of the police to balance respect for of those rights with the right to freedom of assembly." (pg 14)
4. That there is a human right to peaceful assembly, but not to engage in violence against property or people: "The right to assemble is a right to assemble peacefully. There is no right to act in a violent manner when exercising one’s right to assemble. If an individual acts violently while participating in an assembly, then that individual is no longer exercising a protected human right. However, violent acts by isolated individuals do not necessarily affect the right to assemble of those who remain peaceful." (pg 15)
5. Even if the protesters fail to comply with regulations (such as local regulations that may require a permit) police should still facilitate the protest: "It should be noted that even though an assembly organizer or individual participants may fail to comply with legal requirements for assemblies, this alone does not release the police from their obligation to protect and facilitate an assembly that remains peaceful." (pg 15)
6. What is "peaceful assembly"? "Peaceful Assembly: An assembly should be deemed peaceful if the organizers have professed peaceful intentions and the conduct of the participants is non-violent. Peaceful intention and conduct should be presumed unless there is compelling and demonstrable evidence that those organizing or participating in that particular event themselves intend to use, advocate or incite imminent violence. The term “peaceful” should be interpreted to include expressive conduct that may annoy or give offence, and even conduct that temporarily hinders, impedes or obstructs the activities of third parties. 2 An assembly should be considered peaceful, and thus facilitated by the authorities, even if the organizers have not complied with all legal requirements. Lack of such compliance should not be an excuse to inhibit, disrupt or try to prevent an assembly." (pg. 14-15)
7. What is not "peaceful assembly"? "Assemblies that incite hatred, violence or war, aim to deliberately restrict or deny the rights of others or aim to intimidate, harass or threaten others, in violation of applicable law, are not considered to be protected assemblies. Article 20 of the International Covenant on Civil and Political Rights states that “any propaganda for war shall be prohibited by law, and that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (pg 15)
8. If some of the protesters are violent, police should deal with those individuals and not deny the whole group the right to assemble: "If individuals or small groups of people engage in acts of physical violence during an assembly, the police should always ensure that their response is proportionate and focuses on those who are engaged in violent behaviour rather than directed at the participants in the assembly more generally. This is true whether the violence is directed against the police, individuals, property, people within the assembly or those perceived to be in opposition." (pg 18)
Example from recent news: Such a situation was seen at a recent protest in Portland, Oregon, after the 2016 presidential election. A very large protest took place. A small subset of individuals came armed with bats and metal bars, and broke windows on shops and smashed the windows and metal on cars. The Portland police were heard on videos telling those not engaged in the violence to separate themselves from the violent protesters and go protest at a different location where peaceful protests were being held. The police then declared the area a riot and stated that all present were under arrest. Overall, it appeared that the Portland police did a good job of protecting the rights of the peaceful protesters while being able to arrest a significant number of the violent protesters.
9. Costs of Policing should not be charged to protesters or organizers. Insurance coverage should not be required: "The costs of providing adequate security and safety (including policing and traffic management operations) should be fully covered by the public authorities. The state must not levy any financial charge for providing adequate policing. Organizers of non-commercial public assemblies should not be required to obtain public-liability insurance for their event." (pg 21)
NOTE: I would like to see this expanded to say that a City should open its available public restrooms for use by those in an assembly or protest. Other nearby facilities, such as park benches, picnic tables, public transportation stations and bus stops, drinking fountains and water spigots, electrical outlets, bicycle racks, and other existing facilities should be open and their use not denied to protesters.
10. Police should not interfere with or restrict media journalists. No distinction should be made between media organizations and independent journalists. People should be allowed to video or photograph the police. Police should not confiscate or damage cameras, cell phones, or other equipment of the journalists. (pgs 33-34)
11. That police officers may never act as agents provocateurs: "That officers must not act as agents provocateurs and may never instigate, participate or incite illegal actions within the assembly." (pg 71) This topic is limited to a single sentence, but should instead be printed in huge bold letters taking up an entire page. There are many stories of police acting as agents provocateurs and trying to incite violence or entrap protesters. It is heartening to see this despicable practice prohibited by OSCE ODIHR.
12. Policing Strategy: Part II of the guidebook, which is pages 42-125, deals with the police planning and strategy. Topics include the use of water cannons, chemical agents, impact round (less than lethal weapons), and firearms. Notably absent is discussion of the use of a sound cannon or LRAD. If you are involved in planning protests or in giving legal advice or assistance to those who do plan protests, you should read this entire section. It will give you a picture of the details of planning, infrastructure, and expense that go into running a police force that can properly handle public assemblies. (pgs 42-125) It can also help you understand the rights of protesters and how to protect them from harm. Although each city in the U.S. and each city worldwide all have different specific laws regarding public assembly, there is a commonality to the approach. This guidebook is an attempt to get the OSCE member nations all on the same framework of respect for human rights in peaceful assemblies.
NOTE: My personal observation has been that the more organizers and protesters or participants in public assemblies are aware of the laws, rules, regulations, and practices of the police and city, the more likely the protest is to be peaceful. The more people can engage in peaceful protest, the better the democracy. Protest and assembly are basic human rights that lead to better government.
So, too, the more aware that people are of the possibility that there may be people who show up at a peaceful protest with the intent of disrupting it with violence or chaos, the more likely the peaceful ones are to separate themselves from the violence. Knowledge is a powerful thing.
More about OSCE:
About my involvement with OSCE ODIHR: Susan Basko, the author of this article, is a lawyer in the United States of America. Among other things, she assists those who want to plan a protest. She is open in helping people from the wide spectrum of political and personal viewpoints. IN 2012, she assisted OSCE ODIHR in a study of protests throughout the world, with her expertise being lent to the U.S. protests taking place in New York, Chicago, Los Angeles, and Oakland, California. Ms. Basko was invited by OSCE ODIHR to participate in a summit of leaders and activists from around the globe. That meeting was held in Vienna, Austria. Ms. Basko contributed by making proposals for international laws to require nations not to interfere with internet or phone signals during a protest. That proposal was accepted by the assembly and became part of the recommendations for laws sent to the 57 participating nations. Ms. Basko sees OSCE ODIHR as the organization making the biggest impact worldwide to protect the human rights of freedom of speech, freedom of assembly, and freedom of the media.