In the first weeks that followed 7 October, when Hamas’s killing of 1,400 people in Israel triggered the bloody war with Israel, about a quarter of the pro-Palestine marches registered with the authorities in Germany’s main cities were banned. According to the newspaper Der Spiegel, 90% of those that went ahead had conditions imposed upon them.
In France, it took the intervention of the highest administrative court to stymy a plan by that country’s interior minister, Gérald Darmanin, to prohibit all protests organised by those calling for a ceasefire. Since then, local prefects are making an assessment on a case-by-case basis.
Elsewhere in Europe, protests have been prohibited in Austria, Switzerland and Hungary, to name a few, while a row in the UK over a pro-Palestine march that took place in London on Armistice Day led to a rupture between Downing Street and the Metropolitan police.
The response of Amnesty International has been to remind national governments that they “have a legal obligation to ensure that people are able to peacefully express their grief, concerns and their solidarity”.
It is argued by some that the past few weeks have further highlighted the fragility of the ecosystem of national laws and supranational rights relating to the European tradition of protest.
“Technically, there’s no right to protest per se that’s protected by an article in the European convention on human rights,” said Richard Martin, an assistant professor of law at the London School of Economics. “So it’s a combination of freedom of expression, and freedom of assembly across articles 10 and 11 that are doing the work. But crucially, they’re qualified rights.
“So what they’re saying is things like that peaceful protest is protected by these rights, but the states can rely on a number of legitimate aims to qualify those rights, to enact laws and allow police powers to interfere with those rights, lawfully. So really, what the ECHR is doing is providing a framework for limiting some of these rights.”
From country to country, the laws around protest vary, with cultural contexts reflected in the legislation, but campaigners say the latest developments in the Middle East have supercharged a trend towards more restrictive legal frameworks.
In France, a law regulating measures relating to the strengthening of the maintenance of public order provides the authorities with the power to ban a planned demonstration deemed “likely to disturb public order”.
There remains a high cultural tolerance of political protest, as the rejection of Darmanin’s call for a blanket ban suggests. However, Lord Carlile, the former independent reviewer of terror legislation in the UK, noted that police methods of dispersal in France have become more robust in recent years, with more powers to deal with the violence that erupted during the “gilet jaunes” and some environmental protests. “We don’t give the police teargas, we don’t give them water hoses,” Carlile said of the British model.
The French parliament passed controversial legislation in 2021 criminalising “the identification of an officer of the national police, a member of the national gendarmerie or an officer of the municipal police when they are taking part in a police operation”, and set a punishment of five years in prison and a fine of €75,000 (£65,600).
In Germany, authorities can prohibit an assembly if it could endanger public safety or order, albeit the risk must come from the demonstration as a whole, not just some participants. In Berlin, two large protests with five-digit numbers of participants took place in recent days but German responsibility for the Holocaust has been cited as a reason for a lack of tolerance of protest that risks fuelling antisemitism.
Holocaust denial is illegal in Germany, as are slogans that directly reference nazism. Berlin police said they had prohibited a large number of proposed pro-Palestine protests based on “an imminent danger that the gatherings would lead to incitement to hatred, antisemitic statements, glorification of violence, incitement to violence and thus to intimidation and violence”.
It is argued by pro-Palestine groups that an understandable desire to protect people from hateful speech has suffocated movements that want to highlight injustice.
In the UK, article 11 of the European convention on human rights is enshrined in domestic law in the 1998 Human Rights Act but the legislation around when the police can apply conditions on a protest has been developing in recent years with the definition of a “risk of serious disruption” recently redefined to include when there is a “more than minor” hindrance to daily life.
A raft of conditions were applied on last Saturday’s pro-Palestine march but the police were still not able to justify banning the event. Such prohibitions have been rare and has been largely imposed on far-right processions that have been pointedly organised to cause trouble. Downing Street has suggested it is now hoping to strengthen the powers of the home secretary and the police to ban demonstrations ahead of time to take into account factors other than the current threshold for action of a risk of serious public disorder.
Martin said in defence of the ECHR that it had been strikingly progressive in recognising that people have a prima facie right to disrupt and engage in civil disobedience, including through climbing into trees and using “go slow” techniques to block public highways. However, national governments were given a “wide margin of appreciation” in justifying interference in those taking advantage of their rights.
“One of the big critiques of the European convention in this area is that really it just provides a means of legitimising state action,” he said. “Because ultimately, the state gets its way because it can put forward defences that say, ‘We did need to intervene in this for reasons of protection of others of safety’. That’s a big critique: that it ends up just being a mode of state justification.
“I would say, that’s qualified by the fact that it’s still giving you something to challenge the police by because, as soon as that right is engaged, the police have to show that they need to be able to show the actions that they took are necessary and proportionate. So at the very least, it is requiring the police to be able to account for their actions.”
Barbora Bukovská, a senior director for law and policy at the rights advocacy group Article 19, said she did not believe the ECHR was a fragile defence but that governments were now knocking up against the rights contained in the convention.
“What is deeply problematic is the proliferation of restrictive laws around protest in many European countries that negatively impact people’s ability to exercise their rights,” she said.
“Those include issues like prior-notification or excessive notification requirements, prior restraint on protests or overbroad prohibitions relating to ‘time, place and manner’ of protest activities. Many of those fail to meet international human rights standards. The UK’s public order bill, with its broad definition of ‘serious disruption’ and introduction of offences criminalising many of traditional protest tactics, such as locking on, is a good example of this trend.
“Those laws, coupled with considerable discretion awarded to authorities exercising law enforcement duties, can restrict protests and violate the rights of people taking part in protests.”
Sacha Deshmukh, Amnesty International UK’s chief executive, said the right to protest should not be beholden to the whim of governments. “Many people are taking to the streets across the world to show support for Palestinians and demand a ceasefire,” he said.
“In Europe, we are seeing many countries restricting the right to protest whether that’s targeting certain chants, Palestinian flags and signs, to subjecting protesters to police brutality and arrest. In some cases, protests have been banned altogether. Our right to protest is not subject to the opinions of political leaders.”
• This article was amended on 17 November 2023 because an earlier version referred to Sacha Deshmukh as “she” rather than “he”.
