In South America, as in other regions of the world, social protest movements are taking hold. States are required to ensure the safety of their citizens and maintain law and order, in particular to prevent the loss of life or other personal or material damage. In addition, States must ensure respect for the rights of citizens who peacefully express social demands. The response – both normative and of law enforcement – of States against such movements must conform to international human rights standards. They must at all times ensure the exercise of these rights, particularly the right of peaceful assembly and the right to freedom of opinion and expression.
> The right to peaceful assembly:
The right to peaceful assembly is recognized in the following universal human rights instruments:
i. Universal Declaration of Human Rights, Article 20: ¨1. Everyone has the right to freedom of peaceful assembly and association.¨
ii. International Covenant on Civil and Political Rights (ICCPR), Article 21: ¨ The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right 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 (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.¨
Note: The International Covenant on Civil and Political Rights is an international treaty ratified by 167 States. States that have ratified the Covenant have committed themselves by law to fulfill this legally binding instrument. All countries covered by the Regional Office for South America have ratified the ICCPR.
How can we interpret Article 21 of the ICCPR?
The Human Rights Committee, the body of independent experts charged with overseeing compliance with the International Covenant on Civil and Political Rights, has adopted a series of General Comments, which constitute the authorized interpretation of the Covenant. While the Human Rights Committee has not yet adopted a General Comment on the right of peaceful assembly, its General Comment No 31 on the obligations of States that have ratified the ICCPR is applicable. It indicates that State Parties are obliged to respect the rights recognized in the Covenant and to ensure them for all individuals under their jurisdiction.
This implies that all restrictions on any of these rights must be:
a) permissible under the Covenant itself,
b) necessary to achieve legitimate objectives of the protection of Covenant rights, and
c) proportional to the achievement of these objectives.
Under no circumstances may the restrictions be invoked or enforced in a manner that would impair the essence of a right of the Covenant.
Read General Comment no. 31 of the Human Rights Committee: PDF 115 kb
The right of peaceful assembly is also recognized by the General Assembly Resolution adopted by the Human Rights Council, 15/21: Human rights and unilateral coercive measures, which ¨calls upon States to respect and fully protect the rights of all individuals to assemble peacefully and associate freely … and to take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.¨ The resolution stresses that the exercise of this right ¨can be subject to certain restrictions, which are prescribed by 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.¨
Read Resolution 15/21, of the Human Rights Council: http://documents-dds-ny.un.org/doc/UNDOC/GEN/G10/166/98/pdf/G1016698.pdf?OpenElement
> The right to freedom of expression
The right to freedom of expression has been recognized by the following universal human rights norms:
i. Universal Declaration of Human Rights, Article 19. ¨Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.¨
ii. International Covenant on Civil and Political Rights (ICCPR), Article 19. “(…) 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds (…) 3. The exercise of the rights (…)may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals.”
How can we interpret Article 19 of the ICCPR?
The Human Rights Committee has interpreted the specific scope of article 19 through its General Comment No. 34 (Right to freedom of opinion and expression), which determines that the restrictions imposed by a State to exercise freedom of expression cannot be put in compromise this right. Restrictions on the exercise of freedom of expression must be provided by law and are necessary: a) to ensure respect for the rights or reputations of others, or b) to protect national security, public order or public health or morals. These provisions must meet strict tests of necessity and proportionality.
Read General Comment no. 34 of the Human Rights Committee: Word 132 kb
> Related links:
Universal Declaration of Human Rights: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng
International Covenant on Civil and Political Rights (ICCPR): http://www2.ohchr.org/english/law/ccpr.htm
General Comments of the ICCPR: http://www2.ohchr.org/english/bodies/hrc/comments.htm
Regulation of the use of force by law enforcement officials Information note: http://acnudh.org/?p=11874
Law enforcement officials are required to know and apply international human rights standards. There are several international instruments governing the conduct of such officers, including particular issues such as the use of force they can legitimately exercise. These constitute minimum standards for the use of force.
The international instruments that refer to the conduct of law enforcement officials include the following:
i. International Covenant on Civil and Political Rights (ICCPR), Article 9. “1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge (…) and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. (…)”
How can we interpret Article 9 of the ICCPR?
General Comment No. 8 of the Human Rights Committee specifies that Article 9 of the ICCPR is applicable to all types of deprivation of liberty, whether as a result of a crime or other reasons. In specific cases of criminal offense, paragraph 3 of Article 9 requires that the person detained be brought promptly before a judicial authority. These delays should not exceed a few days. Custody should be an exception and last as short as possible.
Read General Comment No. 8 of the Human Rights Committee: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument
ii. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment obliges States Parties to prohibit torture and other cruel, inhuman or degrading treatment committed by public officials or any other person acting in an official capacity. This includes acts of instigation or those committed with the consent of that individual (see Articles 2 and 16).
Note: The Convention against Torture is an international treaty ratified by 149 countries. States that have ratified the Convention have committed themselves to fulfill the Convention, as a legally binding instrument. All countries covered by the Regional Office for South America have ratified the Convention.
Read the Convention against Torture: http://www2.ohchr.org/english/law/cat.htm
How can we interpret Article 2 of the Convention against Torture?
General Comment No. 2 of the Committee against Torture considers that the prohibition of torture (art. 2) and ill treatment (art. 16) is absolute in the Convention, and that its prevention should be effective and imperative. States Parties are obliged to remove all obstacles to the eradication of torture and ill-treatment. They must also take effective measures to prevent these behaviours and their reiteration. States Parties are also required to constantly review and improve their national legislation and action in regard to the Convention. If the measures taken by the State Party failed to eradicate torture, the Convention calls for a review or for more effective measures. The Committee absolutely condemns the justification of torture and ill-treatment as a measure to protect public security or to prevent emergencies or any other situation. The Committee considers that amnesties or other impediments to the prosecution as well as the prompt and impartial punishment of the perpetrators of torture or ill-treatment are a violation of the prohibition. Actions that demonstrate unwillingness in this respect may also constitute a violation of the treaty.
Read General Comment No. 2 of the Committee against Torture :http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/402/62/PDF/G0840262.pdf?OpenElement
iii. Other international instruments regulating the use of force by law enforcement officials:
There are equally instruments adopted by the General Assembly and the Economic and Social Council, which lack the binding force of international treaties, but which nevertheless provide universal guidelines that describe the minimum standards for the activities of law enforcement officers:
- Code of Conduct for Law Enforcement Officials: indicates that force can be used ¨ only when strictly necessary and to the extent required for the performance of their duty.¨ The use of force can take place only in exceptional cases and always respecting the principles of proportionality, legality, responsibility and necessity. Read the Code of Conduct: http://www2.ohchr.org/english/law/codeofconduct.htm
- Basic Principles on the Use of Force and Firearms by Law Enforcement Officials: specifies the conditions that must be met for the use of firearms. These principles dictate that proportionality must be assessed in relation to the seriousness of the offense and the legitimate objective to be achieved, as well as the principles of legality, responsibility and necessity.
Read the Basic Principles: http://www2.ohchr.org/english/law/firearms.htm
For its part, the United Nations Office of the High Commissioner for Human Rights has produced a Manual on human rights for the police.
Read the Manual: http://www.ohchr.org/Documents/Publications/training5en.pdf
Read the Expanded Pocketbook on Human Rights for the Police: http://www.ohchr.org/Documents/Publications/training5Add3en.pdf
> Related links:
Information note: “Social protest: What are the State´s responsibilities according to international human rights standards?” http://acnudh.org/?p=11868