What is the official position of human rights organizations on protest restrictions during the pandemic?

Question

Australia was recently in the news for restricting the right to protest during a surge in COVID cases:

Hundreds of fines have been issued and dozens charged in Sydney after anti-lockdown protesters marched and clashed with police in what one deputy commissioner called “violent, filthy, risky behaviour”.

The Australian prime minister, Scott Morrison, said on Sunday the previous day’s protests – in which thousands breached the region’s coronavirus measures to protest – were “selfish and self-defeating”, adding: “It achieves no purpose. It won’t end the lockdown sooner.”

Similar restrictions have been seen in various countries ever since March 2020. Did human rights organizations make any statements to support or oppose such restrictions, given that protesting is generally seen as a basic human right?

NB: This post makes no statement on whether or not restrictions on protests are good or bad. It purely exists to understand the official position of human rights organizations. Please avoid debating pros/cons of such restrictions in comments.

Answer 1

Amnesty International published a report in December 2020 entitled COVID-19 crackdowns: Police abuse and the global pandemic which dived into this a bit - the position expressed in the report is to recognise that while under paragraph 3(b) of Article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression may be subject to restrictions necessary to protect public health, these restrictions should remain proportionate.

FREEDOM OF EXPRESSION AND PEACEFUL ASSEMBLY DURING THE PANDEMIC

Under international human rights law, restrictions can be lawfully placed on the right to freedom of peaceful assembly in order to protect public health or other legitimate concern where they go no further than what is necessary and proportionate. However, in many instances documented by Amnesty International restrictions go much further; for example, prohibiting or restricting protests where other public gatherings of similar sizes remained unaffected. In addition, in assessing whether restrictions on assemblies are necessary, authorities must take into account the measures that demonstrators are voluntarily implementing to comply with public health restrictions, such as keeping enough physical distance or wearing masks; and in assessing proportionality the fundamental importance of the right to freedom of peaceful assembly must be given sufficient weight.

It notes in the report, however, many instances where restrictions have gone further than this - for example in the Philippines, where the report says that "President Rodrigo Duterte gave orders to the police, military and local officials to kill those who cause “trouble” during the imposition of community quarantine", and in France, where it reports that "85 people were fined in three incidents for participating in small protests in May and June, including ones expressing support for health workers, despite protesters wearing face coverings and/or maintaining physical distance."

Answer 2

Human Rights Watch (HRW) posted an article entitled Covid-19 Triggers Wave of Free Speech Abuse. It says:

At least 83 governments worldwide have used the Covid-19 pandemic to justify violating the exercise of free speech and peaceful assembly, Human Rights Watch said today. Authorities have attacked, detained, prosecuted, and in some cases killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they claim threatens public health. The victims include journalists, activists, healthcare workers, political opposition groups, and others who have criticized government responses to the coronavirus.

“Governments should counter Covid-19 by encouraging people to mask up, not shut up,” said Gerry Simpson, associate crisis and conflict director at Human Rights Watch. “Beating, detaining, prosecuting, and censoring peaceful critics violates many fundamental rights, including free speech, while doing nothing to stop the pandemic.”

The article links to the results of HRW's analyses of specific free speech abuses by governments relating to the pandemic. They found the following also applied to Australia:

Arbitrary Arrest, Detention, Prosecution At least 51 governments around the world have used Covid-19-related public health measures or laws pre-dating the pandemic to arbitrarily arrest, detain, prosecute or fine people expressing opposition to authorities’ responses to the pandemic or other government policies unrelated to Covid-19.

Other abuses include (but don't apply to Australia): Violence, Censorship Through Laws, Threats, and Blocking Reporting, Restricting Access to Public Health Information, and Banning Protests and Other Public Assemblies. The page ends with a list of all the countries where they found at least one abuse and it provides links to articles with further information about the abuse in that country.

For Australia it links to the following article by HRW: Australia: Harsh Police Response During Covid-19 which identifies the following concern:

On September 18, the Victorian government’s lower house passed the Covid-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020. The bill, if passed by the upper house, would extend powers currently granted only to health officials, to any authorized officer to preemptively detain people who test positive for the virus that causes Covid-19 and who are “likely to refuse or fail to comply with the direction.” Police officers and Protective Services Officers could be among those granted these powers, but it is unclear who would be an “authorized” officer.

Preventive detention authority should only be used in the most serious circumstances, subject to strict limitations and independent review, Human Rights Watch said. If police receive expanded powers under this law, the limitations and rights of appeal would be unclear, as would be whether there is sufficient oversight to prevent misuse or the discriminatory application of the law.

On September 22, a group of retired judges and leading lawyers wrote a letter to the Victorian premier expressing their alarm over the proposed laws, calling it “unprecedented, excessive and open to abuse.”

“Giving ‘authorized officers’ in Victoria the power to preemptively detain people amid repeated complaints of heavy-handed policing could do more harm than good,” Pearson said. “With Covid-19 numbers in the state falling, now is not the time for new emergency powers.”

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Despite the condemnatory language regarding violent responses to peaceful protests, HRW recognizes that that combatting the pandemic requires governments to apply some restrictions in the interest of public health. In their article entitled Future Choices Charting an Equitable Exit from the Covid-19 Pandemic they provide a more nuanced position:

The right to the highest attainable standard of health under international law obligates governments to take steps to prevent threats to public health and to ensure access to medical care for those who need it. Human rights law also recognizes that in the context of serious public health threats and public emergencies, an effective response may require temporary restrictions on some rights. Such restrictions need to have a legal basis, be strictly necessary with a rational basis, proportionate to achieve the objective, and be neither arbitrary nor discriminatory in application. They should be of limited duration and subject to review.

The scale and severity of the Covid-19 pandemic rose to the level of a public health threat that justified some restrictions on certain rights. However, the pandemic has also been characterized by governments using public health emergency measures to grab power and abuse rights, the systematic neglect of some minority populations, and failures to anticipate and counteract ways in which harm resulting from the pandemic and measures to contain it fell disproportionately on people already facing inequity due to factors including race, gender, age, disability, and immigration or socioeconomic status.

One such human rights law that emphasizes public health is the International Covenant on Economic, Social and Cultural Rights, article 12.2(c) of that agreement states (square brackets incorporate the right described in article 12.1):

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right [of everyone to the enjoyment of the highest attainable standard of physical and mental health] shall include those necessary for: (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;