A/HRC/32/36/Add.1 26. Importantly, the lawfulness of a demonstration should be assessed first and foremost in terms of its peaceful nature. In this regard, the Special Rapporteur underscores that the peaceful intentions of organizers and participants should be presumed, and warns that sporadic acts of violence by a few individuals does not automatically mean that the assembly as a whole is not peaceful. He welcomes the principle in the protocols that law enforcement officers must distinguish during a protest between peaceful protestors and those breaking the law. 27. The protocols also define unlawful assemblies as those which are either violent or aggressive. 9 The protocols define assemblies as “violent” when police instructions are contravened and “aggressive” when damage is caused or when people or police authorities are intentionally attacked. The Special Rapporteur is of the opinion that these definitions are far too broad and likely to lead to arbitrary interpretations. They unduly curtail the right to freedom of peaceful assembly as they do not meet the legality criteria for restrictions. Furthermore, the criteria of violence should be applied to individuals, not to assemblies as a whole, given that the right to peaceful assembly is the individual right of all persons. 28. The Special Rapporteur welcomes the emphasis laid on the importance of dialogue between law enforcement authorities and assembly organizers and participants, but stresses that the authorities should not formally or informally impose on organizers the expectation to negotiate the time, place or manner of the assembly with the authorities. 10 Use of force 29. The police protocols allow for the gradual and discriminate use of force in the context of protests. They condition the use of force on the respect of three principles: legality; necessity; and proportionality. The Special Rapporteur welcomes this sound approach. However, he points out that the protocols define the principle of legality as “previously authorized by police,” instead of “as prescribed by law,” which falls short of international human rights norms and standards. The principle of necessity refers to the use of force as a measure of last resort when faced with an act of resistance or a threat. The principle of proportionality is defined as a balance to be struck between the level of resistance or aggression faced by the police and the intensity of the use of force to compel the person to abide. These two latter principles are crafted in a satisfactory manner. 30. The protocols provide for the gradual resort to different means of intervention, including batons, water cannons, tear gas, paintballs and rubber bullets. The Special Rapporteur was informed by the police that they no longer use paintballs, following a serious incident in which a protestor lost an eye (see para. 42 below). This is a positive development. Nevertheless, according to the protocols, their use is still technically permissible.11 In addition, as flagged by INDH, the protocols fail to specify the composition of the water or the gas to be used in order to ensure the safety of the demonstrators and the population at large.12 The Special Rapporteur notes the statement made by the police that they always check if a new weapon complies with the protocols prior to using it. However, he stresses that the use of gas and water cannons present significant risks of harm, especially since their use does not discriminate between demonstrators and bystanders, healthy people and people with health conditions. 9 10 11 12 Ibid. See A/HRC/23/39, para. 56. See Carabineros de Chile, Protocolos para el mantenimiento del orden público (Police protocols for maintaining public order), March 2013, protocol 2.15. See INDH, Situación de los Derechos Humanos en Chile, Informe anual 2014, p. 51. 7