“UNL’s directive for protests not in line with right to protest”

International right to protest always given priority

Read more

“UNL’s directive for protests not in line with right to protest”

Pro-Palestine protests took place at several universities in recent weeks. As a response, umbrella organization Universities of the Netherlands (UNL) published a directive for protests. TU/e had already drafted rules of its at an earlier stage. However, the directive and the rules contain points that aren’t in line with the international right to protest, Amnesty International says. “A judge would disregard those points.”

photo Cat de Win

There’s a lot going on in ‘the world of protests’, Marjolein Kuijers has noticed. She works for Amnesty International as a policy officer focusing on the right to protest, and is therefore monitoring the situation from this perspective. To this end, she attends protests to observe whether the right to protest is properly safeguarded, but she also talks to activists and representatives of local governments and Internal Affairs.

Recently, Kuijers paid a visit to TU/e. Not to attend a protest, but to update the Executive Board (EB) on the scope of the right to protest at universities. “We had been approached by members of the EB, because they had questions about this matter. I told them the same thing as what it says in our statement on protesting at government institutions. I think it’s positive that a university reaches out to get more clarity on the frameworks for protests.”

What did the EB want to know?

“What the university can and can’t do. Which makes sense. There’s quite a bit of pressure – especially from politics – to intervene. It’s a good thing when a university wishes to inform itself so it can respond to this.”

Did you also talk about the rules relating to protests that TU/e drafted in November of last year?

“No, we didn’t discuss those in any detail.”

Are there points in that protocol that aren’t in line with the right to protest? What’s the deal, for example, with the rules saying that protests cannot take longer than agreed beforehand?

“The right to protest can be restricted on a number of grounds. A protest that takes longer than agreed isn’t one of those. It may be a nuisance when that does happen, but you still have to look at whether it’s necessary to intervene, whether you can do so in a proportionate manner, and whether it would serve one of the legitimate causes, such as protecting public health. One of the things the protocol mentions is ‘serious inconvenience’, but that’s not a reason to curtail a demonstration. It’s pretty bad that that’s in there, because every protest involves inconvenience, or else it wouldn’t be a good protest. Whether it’s noise, roadblocks, or just plain annoying, it’s part of the game.” 

UNL recently published a directive for protests as well. What do you make of this?

“Let me begin by saying that in itself, it’s a good thing that universities make rules, as they provide clarity. I have to qualify this, however, by saying these rules shouldn’t go against the right to protest. It’s a human right, so this must ultimately be leading. Peaceful protests have to be given a lot of space. I did see that the directive pays quite a bit of attention to dialogue. That’s very important.”

Are there any points in the directive that aren’t in line with the right to protest?

“To name one: occupying a building isn’t permitted by the directive. This may well be a university’s standpoint and it might make sense for that university to think along these lines, but it does go against the right to protest. The European Court of Justice is very clear about this right being defined very broadly indeed. It includes blockades, disruptive actions, and occupations. The fact that the university says it’s not permitted isn’t enough. It’s kind of the same as what’s happening with Extinction Rebellion on the A12 freeway. Yes, under normal circumstances occupying a freeway is a punishable offence, but when you do in it the context of a protest – just like occupying a building – there has to be scope for this, as long as it’s done in a peaceful manner.”

“Universities shouldn’t assume that breaking the house rules is enough to intervene in a protest or disallow it. It’s not that easy. In most cases, protests unfold without any problems and there’s no need to intervene or make extra rules.”

What’s the value of such a directive if European laws say otherwise?

“That’s a good question. It’s not without value, because in the end the university does decide about what happens on campus, up to a point. If the university thinks a boundary is being crossed, it can call in the police on charges of trespassing or disorderly behavior. The Mayor will then determine if actions are in order, i.e., if the police is to clear the area. But again, if the only charge is disorderly behavior, this doesn’t constitute sufficient reason to intervene in a peaceful protests.”

“Stricter rules govern this. An intervention must meet one of the legitimate interests listed in the Public Assemblies Act and the European Convention on Human Rights (ECHR). Examples include preventing disturbances, and protecting public health and the rights and freedoms of other people. Even so, interventions must be necessary and proportionate. A university can say: we’ve had enough. This is a factor, but not the only one affecting the Mayor’s decision whether to intervene or not.”

Suppose the university intervenes in an occupation because the directive says it’s not permitted. What will happen afterwards if it turns out this wasn’t proportionate according to the right to protest?

“Those are lengthy processes. If the order to clear the area is found to be unlawful, this may mean the arrests that were made as a result must be reassessed. The European Court also looks at the root cause of the violence. If protesters defend themselves against unlawful police violence, this has to be taken into account. This doesn’t mean protesters will be cleared of all charges right away, but it does come into play. The same goes for the fact that students know what the rules are owing to the directive. But if you look at the directive, some rules do create a tricky situation.”

“It says, for example, that it’s against the law to wear face-covering clothing, but at the same time the right to protest dictates it must be possible to take part in a protest anonymously. Especially in the current climate, where students have experienced repercussions from the universities following protests, and also given the actions against protesters taken by the University of Amsterdam, it’s not strange people want to be anonymous when participating in protests. We also have to be careful not to instantly classify people wearing face-covering clothing as rioters or hooligans. The fact that they wear those clothes doesn’t mean they cross boundaries, even though it’s technically against the law. If a case like that is brought before the court, I can’t imagine the judge imposing a fine on a peaceful protester for the mere wearing of face-covering clothing.”

So in a situation like that, the judge will assign greater weight to the right to protest than to the TU/e and UNL rules?

“The right to protest is definitive, because it arises from international commitments made by the Netherlands. In cases where the protocols clash with that right, the former are ‘invalid’ and can almost be disregarded altogether. That’s what a judge would do, because we all agreed that the conventions take priority over national law and lower regulations, such as the protocols.”

But in order to obtain justice, a protester does have to bring the matter before court themselves?

“There are different situations. If you’re a protester and you’re arrested, you can file a complaint. And if a protest that wasn’t registered with the municipality is terminated by the Mayor, you can dispute this termination.”

But by the time the judge can pass a verdict, the protest is long over.

“Yes, that’s the downside of the right to protest. You also see this happen, for example, in ID checks of peaceful protesters, another subject Amnesty published a report about. What it comes down to is that the police cannot demand to see the IDs of people who are protesting peacefully. If that’s all there’s going on, there’s no reason to register their details in the system. But it does happen. That can be frustrating about human rights work. On paper there are rights, but in practice those are often violated and this means you’ll have to dispute actions and decisions to obtain justice.”

It’s quite understandable that it’s difficult for a university to make the right considerations when it comes to protests, especially if it concerns an occupation. If the university does ask the protesters to leave in the end and they don’t honor this request, what would be a proportionate intervention?

“Several things come into play. For one thing, if it concerns an occupation you have to look at the kind of space that the protesters are occupying. Is it being used? Does this constitute a serious disturbance of the usual state of affairs? In case of that earlier occupation at TU/e, I think people might as well have held their meeting somewhere else than in that specific space. There was a similar case where the European Court told administrators: just find a spot somewhere else. Other circumstances that are relevant include the way in which the students are behaving: are they damaging things or are they just sitting there? And it matters whether they’re there for three days or three weeks as well. For example, farmers in Lithuania blocked three major thoroughfares for several days. The Court still thought this protest needed protecting. As time went on, intervening became proportional, for one thing because the whole country had been shut down and people were disproportionately inconvenienced.”

When the university is in doubt about how to handle a protest, who should they call?

“Me (laughing, ed.). Or Amnesty. But the Mayor should also be aware of the rules. However, the most important thing is to engage in dialogue, especially now so much distrust has arisen over how universities have generally handled student protests. It would be good if universities did their utmost to restore students’ trust. And, moreover, if they continued to see students as concerned citizens expressing how they feel about a conflict. A horrible conflict. If this can’t be done at university, where can it. My advice is: whatever you do, keep looking for dialogue and don’t take as your point of departure the means you have at your disposal to intervene and repress, but try to see protesters as peace-loving human beings. Outraged and frustrated, but peace-loving. And treat them accordingly.”

Response by UNL and TU/e

UNL’s directive brings together existing house rules at universities that came about in consultation with local participation bodies, spokesperson Ruben Puylaert tells us. “It’s a combination of house rules and the law. We brought those things together to provide clarity to all students and staff.” UNL had the directive assessed by legal experts and the Dutch Public Prosecution Service, says Puylaert. The trade unions recently expressed their concerns about the directive. In a letter to UNL, they state that they think it is not in line with the internationally recognized and established right to protest. UNL takes these concerns seriously, the spokesperson says. “We will talk to the unions about this. We haven’t set a date for this yet, but we regularly convene with them to talk about the collective labor agreement, so then we’ll also discuss this directive. But like I said before, we did do our due diligence on this.”

TU/e spokesperson Ivo Jongsma informs us in writing that every care was taken in the drafting of the manifestation protocol: “The protocol was drafted in close collaboration with, and with full support from, the University Council and several legal experts contributed to it. The University Council also formally approved the protocol. In the protocol, we emphasize that we give as much scope as possible to manifestations and are reluctant to impose restrictions. We are closely following the current debate on the national directive. Should this yield new insights that necessitate modification of the national directive, we will also assess whether our own manifesto needs changing.”

Share this article