U of O encampment is legitimate protest*
Jacques Frémont
President and Vice-Chancellor
University of Ottawa
May 1, 2024
Dear Dr. Frémont,
It is with both hopeful expectation and a degree of worry that I watch closely the university’s response to the Palestinian solidarity encampment in front of Tabaret Hall. My hopeful expectation is that your response will scrupulously adhere to what human rights protections require. My degree of worry is that political or other considerations may provoke unwarranted enforcement action that is both unjust and confrontational. I urge you to resist taking steps to prohibit or dismantle the encampment. Despite the pressures you may face to do otherwise, this is a vital time to stand firmly for human rights. And given your longstanding service to the cause of human rights – locally, provincially, nationally and internationally – I am confident that you will demonstrate that resolve.
I watch closely because I myself am a member of the University of Ottawa community, where I am an adjunct professor of international human rights law with the Faculties of Law and Social Sciences and a Senior Fellow with the Graduate School of Public and International Affairs. As such I am implicated.
I watch closely as a long-time human rights lawyer, who has worked extensively both nationally and internationally, and has seen how often basic human rights frameworks are abandoned and violated in the name of short-sighted and frankly often discriminatory arguments about necessity and expediency when authorities face challenging and complex situations. As such I watch with a much wider view than just what is transpiring on campus.
I watch closely as a human rights advocate who shares the deep anguish being expressed by protesters about the massive human rights violations being committed by the Israeli military in Gaza, which the International Court of Justice has ruled may plausibly constitute genocide. I also abhor the October 7th attacks carried out by Hamas, and the abduction of hostages at that time. The inhumanity of what is transpiring is staggering and has understandably propelled students to act. I cannot but echo their demand that at a minimum our governments and institutions – of course including their own university – not directly or indirectly contribute to these grave crimes. Their demand for transparency around the university’s investments in and financial ties to banks and companies, including arms manufacturers, that may be linked to the Israeli military and security forces, is eminently reasonable. It is echoed in other university protests and in human rights petitions and campaigns around the world. As such I watch with conviction that we must pursue all steps, close to home and on the world stage, that stand to contributing to bringing this harrowing assault on the human rights of a beleaguered people to an end.
I watch closely, as well, in full agreement that we cannot in any way countenance racism, hate or violence in any form and in any setting, including at a protest, be that antisemitism, Islamophobia or anti-Palestinian racism. It should not need repeating, but it does; a protest which focuses on the actions of a particular government, in this case Israel, is not inherently racist, hateful or violent. To decry genocide, war crimes or crimes against humanity committed by the Israel Defense Forces is not antisemitic, just as to criticize Hamas for its actions on October 7th or for continuing to unlawfully hold hostages, is not Islamophobic or indicative of anti-Palestinian racism. Quite the contrary, speaking out about the human rights violations and international crimes that have marked decades of occupation and violence in Israel and Palestine, represents a commendable and necessary assertion of vital international legal norms that have been routinely violated and disregarded by the parties to this entrenched conflict as well as by the international community, including Canada. As such, I watch in the firm belief that courageous actions such as what we are witnessing from students involved in this encampment should be encouraged, not dissuaded.
I was troubled and alarmed to hear the university’s position, released even before the first protests took place, categorically and defiantly declaring that “encampments and occupations will not be tolerated.” To prohibit, in advance, a particular form of protest, with no consideration of the particular circumstances, is indefensible. And I trust that your decision-making around the university’s response will not rely on that position. Key considerations include the following.
The right to protest, which is safeguarded by the fundamental freedoms of expression and peaceful assembly, enshrined in the Charter of Rights and in many of Canada’s binding international human rights obligations, is an essential human right, often described as a cornerstone to other human rights and to a healthy democracy. This is not just empty rhetoric, it is foundational, particularly within a setting such as a university.
Respect for the right to protest is not just when it is easy and popular to do so. The right to protest does, and must, extend to protests which are challenging, which may leave others feeling uncomfortable, and are inconvenient and even disruptive. For protesters to maintain a presence in a particular location 24 hours per day, seven days per week, as opposed to eight hours per day, Monday to Friday, is very likely to have greater impact. That does not mean it is somehow less deserving of respect. If anything, it may require greater effort to ensure that the protesters themselves are safe. It may also in some instances necessitate changes to operations, service delivery or activities on campus. That is all part of upholding the right.
There has been much talk of universities being private property and that as such human rights guarantees under the Charter do not apply and a protest in the form of an on-campus encampment should be seen as a simple matter of trespass. Your legal counsel will no doubt inform you that this is an unsettled area of law, with conflicting court rulings as to the extent to which universities are subject to the Charter, whether any, some or all university buildings and spaces should be seen as private or public property, and what that means for protest rights on campuses.
You will of course want to ensure that the University of Ottawa comes down on the progressive, rights-regarding side of that legal debate by fully embracing human rights responsibilities, rather than looking for ways to skirt and avoid them. Notably the Universal Declaration of Human Rights, which recently marked its 75th anniversary, exhorts “every organ of society”, which unquestionably includes universities, to “strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance. [emphasis added]”
Human rights guarantees with respect to the right to protest are strong and robust, as they must be, but they are not without limits. Protests can be restricted. Such limits may even be a critical means of protecting other rights. Articles 19 and 21 of the International Covenant on Civil and Political Rights (ICCPR), which guarantee the freedoms of expression and peaceful assembly respectively, note that restrictions can only be imposed when “necessary”. That qualification of necessity is an important one and sets a very high standard which requires that any restrictions imposed are proportionate and are the least intrusive measure possible. It goes without saying that any such restrictions cannot be discriminatory. Circumstances that may justify such restrictions include national security, public safety, public order, the protection of public health or morals, and the protection of the rights and freedoms or the reputations of others, all of which are to be narrowly and carefully construed. Notably none of these circumstances extend to inconvenience, discomfort or disagreement with protesters’ views.
Over the course of 2022-2023 I served as a Commissioner with the Ottawa People’s Commission on the Convoy Occupation (OPCCO), convened to examine the convoy’s impact on the community in central Ottawa. We adopted a human rights framework for doing so. And our starting point was that the right to protest is an essential human right that must be respected even when the views – in that case with respect to public health protocols related to the COVID pandemic – were unpopular and contentious. In our analysis we identified a wide range of serious human rights harms committed by convoy participants that were experienced by people living and working in central Ottawa, particularly by members of marginalized and vulnerable communities. We documented widespread instances of physical assault, hateful threats and intimidation that were racist, antisemitic, Islamophobic, misogynist, homophobic and transphobic, restricted freedom of movement and fear to go outside and the resulting implications for mental health and accessing essential services such as grocery stores and pharmacies, and disproportionate impact on people with disabilities, the elderly and people with other mobility restrictions.
At the OPCCO, we concluded that the failure to respond to those evident harms represented a colossal failure by police and governments to uphold the rights of people in central Ottawa. So, yes, clearly there are times when “protests”, including protest which may take the form of occupations and encampments, should be restricted, sometimes significantly so; and that the need to take such action may even be dictated by human rights obligations. There is nothing about the situation on the University of Ottawa encampment that is even remotely of that nature.
I would draw to your attention the guidance provided to the international community by the Human Rights Committee, which is responsible for overseeing implementation of the ICCPR. In its General Comment No. 37, issued in 2020, dealing with the right of peaceful assembly, the Committee notes that “any restrictions on participation in peaceful assemblies should be based on a differentiated or individualized assessment of the conduct of the participants and the assembly concerned. Blanket restrictions on peaceful assemblies are presumptively disproportionate. [emphasis added]”
Dr. Frémont, I urge you to make it clear that the University of Ottawa recognizes that the encampment is a legitimate exercise of the right to protest and is protected by the freedoms of expression and peaceful assembly. It will therefore be allowed to continue. If any individual violent acts or unlawful expressions of antisemitic, Islamophobic, or anti-Palestinian hate are either associated with or directed at protesters those should be dealt with appropriately, as they arise, including through criminal charges if justified. Any limitations that may be imposed on the encampment, including with respect to location, size, or health and safety considerations, must be necessary, proportionate, non-discriminatory and impair protest rights as minimally as possible.
Above all, I urge the university to engage in good faith dialogue with the protesters about the demands they have brought forward. They seek to ensure that their university is doing all it can to advance a human rights solution to the crisis in Israel/Gaza and will not be complicit in human rights violations. That is a goal that all members of the University of Ottawa community should surely support. I most certainly do.
Sincerely,
Alex Neve, O.C., LLD (Hon.), LLM
*Photo credit: CBC/Radio-Canada
