人权理事会开展和平集会问题与法外处决问题的互动对话（部分翻译）

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理事会面前有 和平集会与结社自由权利问题特别报告员特别报告员以及法外处决、即审即决或任意处决问题特别报告员有关在习得的最佳做法和经验教训基础上适当管理集会实用建议的联合报告（A/HRC/31/66）。

Presentation of Report by the Special Rapporteurs on Freedom of Peaceful Assembly and on Extrajudicial and Arbitrary Executions

MAINA KIAI, Special Rapporteur on the rights to freedom of peaceful assembly and of association, and CHRISTOF HEYNS, Special Rapporteur on extrajudicial, summary or arbitrary executions, presented their joint report. Mr. Kiai said that assemblies in various forms played a prominent role in the world today, presenting new opportunities and challenges. He said the two Rapporteurs had been engaged in an extensive consultation process, while a nine-member advisory panel had also been convened and had provided feedback at various stages of the process.

Mr. Kiai stated that the ability to assemble and act collectively was vital to social and personal development, to the expression of ideas and to fostering engaged citizenry. Assemblies should not be viewed as a threat, but rather as a means of dialogue in which the State should engage. Even if participants in an assembly were not peaceful and as a result they forfeited their right to peaceful assembly, they retained all other rights, subject to normal limitations. States had to respect and ensure all rights of persons participating in assemblies without discrimination on the basis of any prohibited ground. Every person had the inalienable right to participate in peaceful assemblies, and no person should be held criminally, civilly or administratively liable for the mere act of organizing or participating in a peaceful protest. The positive obligation of the State to ensure rights required that authorities facilitated assemblies. The body with authority for proposing restrictions should not be granted excessive discretion.

Mr. Heyns said that force in an assembly should not be used unless it was strictly unavoidable, and, if applied, it had to be done in accordance with international human rights law. Precaution required that all feasible steps ought to be taken in planning, preparing and conducting an operation related to an assembly. The principle of proportionality set a ceiling on the use of force based on the threat posed – that was a value judgment which balanced harm and benefit. Autonomous weapons systems that required no meaningful human control should be prohibited. Every person also enjoyed the right to observe, monitor and record assemblies; every person had the right to access information related to assemblies. The collection of personal information in relation to an assembly, such a through communications surveillance or the deployment of undercover law enforcement officers, could not interfere impermissibly with privacy or other rights. It was incumbent upon State authorities to manage assemblies in a way that respected all the rights involved, including bodily integrity and freedom of expression and assembly. The Human Rights Council had a critical role to play in that process, by monitoring compliance with the report’s recommendations, including through the Universal Periodic Review and other special mechanisms.

Interactive Dialogue with the Special Rapporteurs on Freedom of Peaceful Assembly and on Extrajudicial and Arbitrary Executions

European Union agreed with the Rapporteurs that assemblies should be seen as a means of dialogue in which the State should engage. It asked if they could provide concrete examples of technical cooperation between States and the Office of the High Commissioner for Human Rights, and if there were any good practices to learn from? Pakistan reviewed national legal regulations in the field of peaceful assembly and association, and said that the exercise of that right had strengthened democracy in Pakistan. Latvia commended the Rapporteurs for their joint report’s pragmatic approach providing practical guidance on how to implement international standards into domestic laws, and asked how all participants in peaceful gatherings could be adequately protected without infringing on their other rights such as the right to liberty and privacy? Paraguay said that ideological pluralism was important, adding that Paraguay guaranteed freedom of assembly and had ratified numerous instruments to that effect, and made efforts such as organising a training day on human rights for the Ministry of the Interior. South Africa said that the exercise of rights carried with it responsibilities and the right under discussion was no exception, and asked the Rapporteurs to share clarification on the exercise of the right to privacy in the context of peaceful assembly, and the classification of assemblies as “equally legitimate use of public space”. Georgia expressed support for the view of the Special Rapporteurs on peaceful assembly, noting domestic implications of that right, and asked for the elaboration of additional measures which could further enhance the role of civil society in assembly-related policy planning.

United States said that its Department of Justice worked to reform state and local law enforcement agencies with systemic constitutional problems, including violations of the right to peaceful assembly. It asked the Special Rapporteurs on their thoughts about the roles of various stakeholders in protecting the freedom of peaceful assembly, guaranteeing access to information and managing assemblies. Spain said that the right to peaceful assembly was essential for the functioning of a democracy, adding that States not only had the obligation not to interfere with peaceful assembly, but also to ensure the protection of peaceful protestors and to prevent violence. Norway strongly supported the right to peaceful assembly and encouraged all States to respect and promote this right. The report contained observations regarding the responsibilities of business enterprises to respect human rights in the context of assemblies, which should be followed-up by the mechanisms promoting the United Nations Guiding Principles on Business and Human Rights.

China said that rights were accompanied by duties, and that individuals should abide by moral norms and public order when exercising their right to peaceful assembly. The death penalty was not just a matter relating to the right to life, and China continued to use this sentence with due safeguards. Russian Federation did not agree with the report’s extensive interpretation of the International Covenant on Civil and Political Rights, without taking the specific circumstances of each State into account. Citizens had to respect national legislation, and it was regrettable that the report contained no recommendations to organizers of assemblies. Switzerland said that States were responsible to facilitate the realization of the right to peaceful assembly, and stressed that the principles of proportionality and legality had to be strictly upheld when dealing with non-peaceful protests, including by using non-lethal weapons.

Poland shared the view that freedom of assembly played a critical role in the development of democratic systems and that it provided opportunities for public participation. Ensuring freedom of assembly could pose a real challenge, especially to emerging democracies and countries in transition. Portugal asked the Special Rapporteurs to elaborate on their recommendation on the granting of a “broad mandate” to an independent oversight body which possessed competences and powers for the effective protection of rights in the context of assemblies. Did the Special Rapporteurs foresee a role for national human rights institutions in that regard? India noted that the enjoyment of rights always entailed a degree of responsibility and should not infringe on the enjoyment of rights by others. Freedom of peaceful assembly should be balanced by the need for public order, adding that it was not clear why the organizers of assemblies should not be held responsible for potential disorder caused by participants. Czech Republic stated that the right to directly and indirectly participate in political and public life was important for empowering individuals and groups and to that end the Czech Republic said it continued working to widen the exercise of that right. It asked the Special Rapporteurs to share good practices. Nigeria agreed with the definition of assembly presented in the Special Rapporteurs’ report, which limited it to those that expressed a common position, grievance, aspiration or identity and that deviated from mainstream positions, or challenged established political, social, cultural or economic interests. However, protestors and agitators had to comply with domestic national regulations when expressing their views. Australia asked the Special Rapporteurs to share their view on how effective coordination and cooperation between event organisers and law enforcement agencies could assist in the proper management of assemblies and ensure the safety of participants and bystanders.

Costa Rica said that protests played a fundamental role when it came to allowing citizens to be involved, as assemblies supplemented channels that were not open, adding that people in peaceful assemblies could be vulnerable and restrictions had to be in accordance with international human rights standards. Turkey spoke about the international practice of the right to freedom of assembly, highlighted national achievements within that context, and added that Turkey with Costa Rica and Switzerland would introduce a resolution on the promotion and protection of human rights in the field of peaceful protest. Iran noted the differences in responsibilities of States and persons exercising their right to peaceful assembly, asking the Rapporteur to elaborate on how law enforcement could differentiate between the intentions and behaviour of participants in a large assembly when most of them had violated the law and public order. Botswana said that peaceful assembly was enjoyed most when there was mutual understanding and tolerance for other rights holders, also explaining domestic regulations touching on that right. Egypt spoke about balancing the rights of peoples to protest and assemble peacefully and governments’ rights to take appropriate measures to maintain public order and stability, also reviewing national regulations. Tunisia said that the practical recommendations in each session provided valuable advice on how States could fulfil their obligations, adding that the freedom to demonstrate was vital and played a fundamental role in citizens’ participation in public affairs.

Republic of Korea expressed its strong support for the right to peaceful assembly, which played a vital role in a democratic society. This had been illustrated by the Government’s cooperation with the Special Rapporteur during his recent visit to the Republic of Korea. Cuba expressed concern about certain recommendations contained in the report. It underlined the necessity to take each country’s national specificities into account, and noted that the right to peaceful assembly in Cuba was only restricted to protect national security, sovereignty and other individuals’ safety. Ecuador said that peaceful assembly should not be seen as a threat but rather as an opportunity for dialogue. Peaceful assembly was important to speak out against corruption, violations of economic, social and cultural rights and in protecting the rights of indigenous peoples. Morocco underlined the importance of notifying the authorities prior to holding assemblies in order to allow them to take the necessary measures to ensure that the assemblies were peaceful and did not threaten the public order. The recommendations in the report should not extend to assemblies that were not peaceful. Venezuela said that its legislation promoted the right to peaceful assembly, and that nobody had been prosecuted for exercising this right. The use of firearms and toxic substances in responding to non-peaceful assembly was expressly prohibited. Belgium noted with concern that the rate of violations of the rights to freedom of expression and to peaceful assembly increased during election periods in many countries, with force being used, often disproportionately. This harmed the political legitimacy of Governments and political, social and economic development.

Maldives spoke about the exercise of the right to freedom of peaceful assembly in Maldives, acknowledged that right’s importance, and noted that civil society played an important role in educating the general public on their rights. Algeria said that freedom of assembly and association was guaranteed by the Algerian Constitution, adding that the exercise of rights involved responsibilities; among other things it should not infringe on national security or other considerations. Ukraine said the mandates of the two Special Rapporteurs were very relevant to Ukraine, and that “Russian occupation authorities” in Crimea and the Russian military “and their proxies in Donbas” were committing summary executions and violating the right to freedom of assembly and association. Libya said that peaceful assemblies had sometimes been the victims of terrorist attacks and outlaws, and Libya needed support to put a stop to terrorist activities so as to promote the right to peaceful assembly and bring perpetrators to justice. Kyrgyzstan said that the freedom to organize public assemblies had to be guaranteed for organizations and representatives of minority groups, and that the main trait that ran through such laws was their enshrinement and protection and promotion of human rights and fundamental freedoms.

Panama said that being able to assemble and undertake collective action was vital for developing democracy. A universal right to dissent was one of the most valuable rights in a free and democratic society. France noted its support for the Rapporteurs’ recommendation that demonstrations should not be used to collect data which would violate the right to privacy, and asked how the international community could promote States and populations learning how to use the right to peaceful assembly in countries in democratic transition? Angola said that freedom of peaceful assembly and association was a fundamental right which should be exercised without restriction under the law, and that the visible presence of the police at some demonstrations in Angola had the sole purpose of maintaining order and public tranquillity. Ireland noted the challenges to the right to peaceful assembly online and asked if the Rapporteurs could elaborate further in relation to such assemblies, also expressing interest in hearing examples of best practices in ensuring that human rights defenders and civil society were protected from human rights abuses by non-State actors.

Centro de Estudios Legales y Sociales, in a joint statement, welcomed the report at a time when increasing numbers of people around the world took to the streets to air their discontent and defend their human rights. The Special Rapporteurs’ report served as a significant contribution to establishing standards for policing assemblies, and it rightly emphasized the need for appropriately trained law enforcement agencies.

Europe-Third World Centre, in a joint statement with International Association of Democratic Lawyers, noted that there should be no impunity for crimes committed by public servants. There should be sanctions and punishments not only for the perpetrators but also for state officials, whether they were military or civil. It was necessary to open public and private sector space to citizens so that they could exercise their right of assembly and association. Human Rights House Foundation reminded that the Human Rights Council had not found a consensus on peaceful protest in 2014. That reflected the reality in which many governments, especially those who voted against the resolution, had since 2011 turned their contempt for protests into restrictive legislation and oppressive police practices against demonstrators. Verein Südwind Entwicklungspolitik drew attention to the breaching of the freedom of assembly and association in Iran where recently 18 persons had participated in a peaceful assembly in Tehran and had been sentenced to 91 days of imprisonment and 74 lashes. Even the International Women’s Day seminar organized by the United Nations Educational, Scientific and Cultural Organization was not tolerated.

Americans for Democracy and Human Rights in Bahrain expressed concern over the increasing number of executions in Bahrain and Saudi Arabia. Some persons using Twitter might be subject to the same kind of oppression. Such treatment was unacceptable according to international humanitarian law. Saudi Arabia’s membership in the Human Rights Council should be suspended. Franciscans International drew attention to the record high number of arbitrary arrests and summary executions of West Papuans. State accountability for human rights abuses in Papua remained the exception rather than the rule. East and Horn of Africa Human Rights Defenders Project highlighted the glaring violations of the right to freedom of peaceful assembly in Ethiopia, particularly since the Oromo protests had begun in December 2015, and it urged all States to immediately implement the recommendations from the Special Rapporteurs’ report. Women’s Human Rights International Association raised concerns about the use of the death penalty in Iran, including against children, in violation of the Convention on the Rights of the Child and other main components of international humanitarian law. Comisión Mexicana de Defensa y Promocion de los Derechos Humanos, Asociación Civil said that Mexican forces were using lethal force more than necessary. The Council should promote international cooperation in order to equip Mexico with an internationally composed mechanism that ensured judicial authorities were able and willing to investigate extrajudicial executions.

Concluding Remarks

CHRISTOF HEYNS, Special Rapporteur on extrajudicial, summary and arbitrary executions, in concluding remarks, said that although civil society had no legal obligation to do so, it could participate in efforts to monitor and ensure that assemblies were peaceful. Action plans for the prevention of violence and the management of assemblies could allow authorities to be prepared to deal with protests in a proportionate way. Precaution was indeed important. He emphasized the importance to distinguish between appropriate responses to armed conflict and normal law enforcement measures, and to keep the military as far as possible from assemblies occurring in a normal context. Although rights came with responsibilities, rights came before responsibilities. The concept of human rights encompassed the idea that they were inherent to all, and did not come with conditions. Public space served many roles, and had to be open to participation and protests. On the death penalty, it was well-established that China had reduced this practice. At the same time, every single execution was a concern in light of the right to life.

The report recognized also the rights of persons working in law enforcement, including their right to life. If law enforcement felt unsafe, they were more prone to use force. Hence the importance of providing them with appropriate training and protection equipment. There had been developments in the availability of non-lethal weapons in recent years. It was important to note that such weapons could still have deadly effects when not used properly or with sufficient training. National human rights institutions played an important role in terms of monitoring and investigation. Organizers should be responsible for their own acts, not the acts of others. Criminal responsibility was personal. In the long term, it would be important for the Universal Periodic Review and other human rights mechanisms to follow-up the implementation by States of the recommendations contained in the report.

MAINA KIAI, Special Rapporteur on the rights to freedom of peaceful assembly and of association, predicted that over the coming years, the international community would see an increase in protests across the world. It was therefore in everyone’s interest to come up with a system of management that made sense to everyone and encouraged peaceful as opposed to non-peaceful protests. Outside criminal law, making organizers liable for the actions of others was dangerous because one then ended up with leaderless protests that one could not conduct a dialogue with, something which again caused a more complex and non-peaceful protest. It was clear that the right to peaceful assembly was an individual right; one could have violent protesters but not violent protests, he said. The Rapporteurs were encouraging all to focus on an enabling environment to allow civil society organizations to be able to get funding and operate like any other organization in society. On the question of lesbian, bisexual, gay, and transgender rights, the question had been raised that by mentioning that issue, the Rapporteurs were diluting the report. There had to be clarity that the people who needed the right to demonstrate the most were the people who were the most marginalized. The lesbian, bisexual, gay, and transgender community existed, and if they could not organize, the international community was asking for trouble. Whether countries agreed with lesbian, bisexual, gay, and transgender rights or not, that community needed to be protected like any other community. “A right is something you have because you are,” he said, adding that if the State had to authorise rights, they turned into privileges.

Right of Reply

Russian Federation, speaking in a right of reply in response to the statement made by Ukraine, regretted that Ukraine had used the discussion for politicized statements. It reminded that the Russian Constitution applied to all its subjects, including the Republic of Crimea and Sevastopol. Measures were taken to prosecute those responsible for human rights violations. It urged the Special Rapporteur to pay attention to the report on Ukraine and limitations imposed by Kyiv on the freedom of association and assembly, and interference in other acts of violence.

Ethiopia, speaking in a right of reply in response to allegations made by East Horn of Africa Human Rights Defenders Project, reminded that in Ethiopia extremists misused the right to peaceful assembly for their own criminal purposes. East Horn of Africa Human Rights Defenders Project should study the difference between terrorism and peaceful assembly and association before making any statements.

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