As a result of the current political climate, student activists across European universities are protesting, marching, and setting up encampments to oppose Israel's occupation of Palestinian territory and the violation of Palestinian human rights. Under Article 11.1 of the European Convention on Human Rights (ECHR), ‘Everyone has the right to freedom of peaceful assembly’.[1]
Article 11.2 permits governments to impose restrictions that are ‘prescribed by the law and are necessary in a democratic society’ for concerns such as national security, public safety, prevention of disorder or crime and several other reasons.[2] Many students advocating for their universities to divest from Israeli institutions have been significantly subjected to police brutality, endorsed by politicians and institutions. This raises the legal question: is the Right to Assembly subjective when it comes to student activists?
To evaluate this question, the European Court of Human Rights (ECtHR) has established a three-step test for restrictions on peaceful assemblies. Firstly, such restrictions must be legally justified; secondly, they must aim at legitimate objectives stemming from a "democratic society"; and thirdly, they must be necessary while respecting democratic principles to justify any interference.[3] Therefore, states must adhere to these standards when disrupting peaceful assemblies.
Establishing unlawfulness is sufficient to confirm a state’s violation of Article 11. In Djavit An v. Turkey,[4] a violation was found when the Turkish government failed to provide a legal basis for denying the applicant a right to cross into southern Cyprus for bi-communal meetings.
The ECtHR also requires that restrictions must be based on clear domestic laws, allowing individuals to understand the consequences of their actions. In Lashmankin and Others v. Russia,[5] the Court found a Russian law permitting authorities the freewill to change public gathering locations or timing lacked adequate protections against arbitrary use, deeming the review process ineffective regarding the necessity of refusals. These refusals were selectively applied, disproportionately restricting the rights of human rights advocates, and LGBTQ+ activists while permitting pro-government events which constituted a clear violation of Article 11.
Restrictions must have legitimate aims as specified in Article 11(2), including national security and public safety. Interferences with the right to peaceful assemble must be "necessary in a democratic society," addressing a "pressing social need" and being "proportionate" to legitimate aims. Authorities must justify restrictions with "relevant and sufficient" reasons, adhering to Article 11 standards.[6]
In terms of proportionality, the Court in Oya Ataman v. Turkey, stated that when demonstrators are peaceful, it is necessary for the authorities to show a degree of tolerance to avoid depriving the freedom of assembly of its substance.[7] This exposes the scope of proportionality required to be showcased by law enforcements and eliminates the arbitrariness. Navalnyy and Yashin v. Russia,[8] was a turning point for Article 11, where an an unauthorised march against allegedly rigged elections was interfered with by riot police. The Courts ruled that police interference with an unauthorised peaceful assembly was excessive, lacking a pressing need to disrupt the gathering. The necessity to act must depends on the magnitude of any ‘disruption of ordinary life’ caused by the assembly.
In Stankov and United Macedonian Organisation Ilinden v. Bulgaria,[9] the Court ruled that total bans on Macedonian minority assemblies violated Article 11(2). This highlights the Court’s belief that peaceful dialogue is essential for resolving social and political tensions.
When applying this law, students are witnessing their right to freedom of expression being threatened in Europe based on a subjective viewpoint. State officials have responded to peaceful assemblies on campus by deploying police to disperse demonstrations and marches. In some instances, riot police have been deployed to break up the encampments. This has revealed a disproportionate excessive use of force and arbitrary detention of student protesters.
In Amsterdam University, riot police had violently broken up encampments with the use of a bulldozer and officers equipped with batons and shields to disrupt demonstrations.[10] Videos have emerged with police officers beating protesters and pulling down tents, resulting in the arrest of 125 activists. Moreover, during a demonstration on campus, according to Dutch Scholars for Palestine, students had described the use of pepper spray, police batons, police dogs and bulldozers to forcefully remove them in demonstrations advocating Palestinian solidarity.[11]
Whilst students created barricades from mere wooden pallets and bicycles, we might ask what gave rise to the use of force causing bodily harm and the use of weapons on students who were exercising their right to assembly? Dutch police justified this level of violence as “necessary to restore order”.
Taking the key ruling of Navalnyy and Yashin v. Russia, the police had no justification in disrupting the gathering nor did they show a degree of tolerance to avoid depriving the freedom of assembly. This is an outright clear violation of article 11.
Therefore, as authorities seek to restore order, we can ask what exactly are they trying to restore or is it in fact a case of an attempt at suppression? Suppression of young people and their calls for action for example? The actions discussed that amount to excessive violence are denying the process of dialogue to resolve political tensions and are thereby undermining democratic values of freedom of speech and sowing seeds of division. If one side goes unchallenged in their right to practice freedom of assembly, this demonstrates an imbalance of powers between citizens, further revealing the ‘subjectivity’ in article 11 towards the students’ plight.
Similarly, a gathering?) at Berlin’s Free University, was broken up by police within a few hours. There was no attempt at a reasonable discussion or negotiation according to the protestors.[12] In fact, without provocation, officers assaulted peaceful protesters while they made 79 arrests. Over 300 lecturers signed an open letter accusing the Free University of failing to foster dialogue and encourage non-violent student engagement. Education Minister Bettina Stark-Watzinger condemned their letter as "shocking" and accused them of "trivialising violence."
Meanwhile, students at Newcastle University were filmed being assaulted and dragged on the ground by Northumbria Police.[13] Despite the peaceful nature of the protests, the university issued eviction notices to students, cut off water, electricity, and closed toilets. The administration accused the students involved in the encampments of violence, justifying the excessive force used by police.
In France, French Interior Minister Gerald Darmanin declared that all pro-Palestinian protests should be prohibited, “because they are likely to generate public order disturbances.”[14] These types of declarations both visually and verbally have been echoed across many other European countries.
Amnesty International’s research ‘Under Protected and Over Restricted: The state of the right to protest in 21 European countries’, has exposed a pattern across Europe where public assemblies supporting Palestinian solidarity are banned or disproportionately restricted on the grounds of protecting ‘public order’ or ‘public safety’.[15] Moreover, authorities have failed to meet the principles of legality, necessity, and proportionality. Hence, this proves that when students hold a peaceful assembly advocating a minority viewpoint, law enforcement may intervene in favour of preserving the interests of the majority within a democratic society. Thus, it becomes evident that the right of student activists to assemble is, in practice, subjective and contingent upon the prevailing societal consensus.
State officials across the continent have strategically used language to compare student activists to “terrorists”, and “extremists” because they stand for Palestinian solidarity. This harmful rhetoric is also used to justify restrictions on the right to peaceful assembly. This encourages a hostile environment where certain citizens are disproportionately affected in the enjoyment of their rights.
This tactic perpetuates ageism, racial prejudice and institutional racism against young student activists, Muslims and Arabs. The motivation to remove protests are being centred solely on the identity of the organisers or their causes. Systemic discrimination is a strong factor at play here. In terms of student activists, young people are being excluded and marginalised for fighting against the dehumanisation of Palestinians. The excessive level of force employed by law enforcement agencies, constructs dominant barriers to people exercising their rights, including the right of peaceful assembly.
Law enforcement has dispersed university protest camps using excessive force, violating not only European human rights law but also standard international human rights law set out in Article 13 of the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.[16] This has uncovered the true failure of the objectivity of Article 11’s freedom of peaceful assembly, as its interpretation relies on the bias eyes of the beholder of power, consequently leading to inconsistent practices and failure to protect human rights.
The right to peaceful assembly has tragically become a subjective right that young student activists have become victim to. This right emerged from humanity’s struggle against oppression and is essential for civic engagement and justice. Without protests, the world would stagnate, perpetuating silence and complacency.
About the author:
Alimat Babatunde is a law student passionate about human rights and politics. She is currently attending the University College Dublin. Alimat is a strong advocate for equity and representation for marginalised communities in politics through her positions as an Ambassador for Diaspora Vote, inaugural Director for Diversity and Inclusion in the European Law Student Association and is a Board member for Diversity in Law. Furthermore, Alimat has contributed policy recommendations on migration within the European Union as part of the European Student Assembly and has contributed to the European Policy Centre’s publication on the youth’s involvement in the 2024 EU election. Alimat represented Ireland as the 2024 Fulbright Undergraduate awardee of the Study of the U.S. Institutes for European Student Leaders, where she studied Civic engagement in Michigan State University.
[1] Article 11.1 European Convention on Human Rights
[2] Article 11.2 European Convention on Human Rights
[3] Navalnyy v Russia [2018] ECHR 1062
[4] Djavit An v Turkey Application no. 20652/92
[5] Lashmankin and Others v. Russia - 57818/09
[6] David Harris and others, Harris, O'Boyle, and Warbrick: Law of the European Convention on Human Rights (5th edn, OUP 2023) ch 14
[7] Oya Ataman v. Turkey application no 74552/01
[8] Navalnyy and Yashin v. Russia No 76204/11
[9] Stankov and United Macedonian Organisation Ilinden v. Bulgaria No 29221/95
[10] Mike Corder and Barbara Surk ‘Arrests in Amsterdam as police break up pro-Palestinian camp at university’ (Irish Examiner 7 May 2024) < https://www.irishexaminer.com/world/arid-41389801.html > accessed: 18 September 2024.
[11] Anthony Deutsch ‘Pro-Palestinian protest in Amsterdam turns violent after student rally halted’ (Reuters 7 May 2024) <https://www.reuters.com/world/europe/dutch-police-end-pro-palestinian-demonstration-amsterdam-university-2024-05-07/ > accessed 18 September 2024.
[12] Ruairi Casey ‘Punched, choked, kicked: German police crack down on student protests’ (Al Jazeera 25 May 2024 ) < https://www.aljazeera.com/features/2024/5/25/punched-choked-kicked-german-police-crack-down-on-student-protests > accessed 19 September 2024.
[13] ‘Anti-Genocide Encampments Facing Police Brutality and Harassment’ (Cage International 3 June 2024) < https://www.cage.ngo/articles/anti-genocide-encampments-facing-police-brutality-and-harassment#:~:text=Students%20at%20Newcastle%20University%20were,beaten%20and%20strangled%20by%20batons. > accssed 20 September 2024
[14] Kate Brady, Anthony Faiola, Emily Rauhala, Karla Adam and Beatriz Ríos, ‘European bans on pro-Palestinian protests prompt claims of bias ’(The Washington Post October 27 2023) < https://www.washingtonpost.com/world/2023/10/26/palestine-protest-ban-france-germany/ > accessed 21 September 2024
[15] Europe: Under Protected and Over Restricted: The state of the right to protest in 21 European countries (Amnesty International 2024) 26
[16] Article 13 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
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