The Line Between Insurrection and Protests

By Catherine Renshaw – Professor and Visiting Scholar, Centre for International Governance and Justice

Protests versus Uprisings

The preamble to the Universal Declaration of Human Rights states: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” The drafters of the Declaration were envisaging a situation where oppressed people justifiably rise up against tyrannical rulers. To avoid this situation and to avoid the mayhem and suffering that rebellion and protests cause, the drafters of the Declaration believed that rulers must protect the human rights of their subjects.

On January 7, 2021, crowds of people stormed the U.S. Capitol in Washington DC. Their aim was to prevent the confirmation of a newly elected president. Their claim, at its highest point, was that the election that ushered in this president was invalid and that therefore, their right to political participation, which is a fundamental human right, had been violated. They saw themselves as being left with no legal alternative but to protest through rebellion. They rose up against the symbol of their subjugation with violence.

Throughout the course of 2020 there were illegal protests in other parts of the world where citizens believed that their right to political participation had been violated and where many people believed that fraud had distorted the results of elections. Like protestors in Washington D.C., they believed there was no alternative other than to rise up against illegitimate rule. In August of 2020, crowds in Belarus gathered in numbers of hundreds of thousands and marched against President Lukashenko. In November 2020, Thailand’s citizens gathered to demand the resignation of former army commander-in-chief Prime Minister Chan-o-cha and demanded a reform of the monarchy. In Mali, protestors demanded the resignation of President Keita in the wake of the June 2020 elections; the citizens viewed the results as illegitimate. Most Western commentators believed that these uprisings were justifiable expressions of the people’s will in circumstances where legal means (such as voting) could no longer be relied upon to achieve peaceful change.

Why were these protests perceived to be an affirmation of democracy, rather than—as in the case of Capitol Hill—an assault upon it? One answer is that the regimes in Belarus, Mali, and Thailand could readily be characterized as governments that operate through tyranny, fear, and oppression. The hallmark of such regimes is the arrest and torture of dissidents, the hobbling of the free press, and the denigration of political opponents. Rebelling against this kind of rule is patently justified.

A Stark Difference

There are two problems with this answer, however. One is that it relies on the perception of the regime in question. The people who stormed Capitol Hill; like protestors in Belarus, Mali, and Thailand; believed that the systems of power to which they were subjected were tyrannous and unfair. They believed that they were reacting to a fundamentally unjust situation to which the only response lay outside the parameters of the law. This was not a recent idea—it had been drip-fed to the disaffected in the United States for many decades.

So, the first problem is truth.

The second problem concerns the rule of law. The rule of law is referred to in the preamble of the Universal Declaration as the necessary means of safeguarding human rights. In the period since the drafting of the Universal Declaration, the rule of law has risen in prominence as a signal of good governance and democratic behavior. But its scope is unclear.

For example: In the 2000 Presidential Election, there was controversy over the vote-counting in Florida. All political sides invoked the rule of law to explain why contesting the electoral results was correct or incorrect, and why or why not an appeal to the Supreme Court was safeguarding or undercutting democracy. Does the rule of law only protect the interests of those who make the rules, or does it have a substantive character of its own? If it serves the interests of the powerful, then it is no protection against tyranny. If it has a substantive character of its own—for example, if it is imbued with principles of democracy and liberty—then the rule of law could be invoked to justify rebellion in circumstances where rights and principles are violated.

The Universal Declaration of Human Rights was drafted in a brief moment of shared understanding about the horror of World War II and the travesty of genocide made possible, in part, by a grotesque distortion of the rule of law under Nazi rule. The Declaration is based on an understanding that objective truth does exist, and that the Rule of Law has substance beyond the laws passed down by rulers. Among the many lessons that must come from the deaths on Capitol Hill must be a return to respect for these two fundamental ideas.

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Catherine Renshaw

Dr. Catherine Renshaw is a Professor in the School of Law at the Western Sydney University. She has also been a Visiting Scholar at the Regulatory Institutions Network, Centre for International Governance and Justice, Australian National University. Catherine completed her law degree at the University of New South Wales, her Master of Laws at the University of Sydney and her PhD at the University of Sydney. Catherine is admitted to practice as a lawyer in the Supreme Court of New South Wales and the High Court of Australia. She has practiced as a solicitor for major law firms in Sydney and Newcastle and for the Legal Aid Commission of New South Wales.