Part 10 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.
Topic 8: Taking up individual cases
MRG defines strategic litigation as an advocacy technique used to achieve legal, political, and social change via the judiciary. The goal of strategic litigation is to set precedents that have a broad impact beyond the individual case.
Minority rights activists can use strategic litigation to:
- Challenge laws or policies that violate constitutional protections or human rights, and ensure that laws are interpreted and applied properly
- Expose injustice and provide redress for victims
- Educate the judiciary and legal community about human rights, and expose institutionalized prejudice
- Promote government accountability by making the international community aware of a government’s actions
- Raise public awareness and encourage public discussion about minority rights
According to MRG, a good strategic litigation case will involve a legal issue that relates to a broader social problem, so that the precedent set by the case can be used to win other cases with different facts. A precedent is a legal decision that can be used as a standard in future similar cases. Before starting a case, all potential applicants must be carefully evaluated.
Characteristics of a good applicant
- They must not only have strong claims, they also must be strong individuals willing to endure the scrutiny of the opponent, the court, media, and general public.
- Strategic litigation cases take a long time to work their way through the domestic and international legal systems. The applicant must understand that it may be years before the case is finished.
- Applicants should be articulate and credible, and their stories should elicit sympathy.
- They must understand that the case is designed to achieve a significant impact beyond their individual claim, and be willing to take a back seat to the lawyers and organizations bringing the case.
Since courts use previously decided cases in order to determine the outcome of the current case, it is helpful to have rulings from courts in the same country, other comparative jurisdictions, or international courts that support the case. The more similar the facts of the prior cases are to those of the current case, the more helpful the cases will be.
Before filing a case, it is important to gather and assess all the evidence that supports its claims. Witnesses, defined as people who saw the alleged violation or were otherwise involved in the events in the case and can testify in court about their experiences and knowledge, should be contacted and interviewed well in advance of the court case. Expert witnesses, defined as people with specialized knowledge about a particular field, such as university professors, scientists, and doctors, who can provide their opinion about the case to the court, may also be hired. When bringing a case, it is important to find a lawyer who is committed to the cause and knowledgeable about strategic litigation and the law relating to the claims.
International mechanisms can only hear cases over which they have jurisdiction (the right, power or authority to interpret and apply the law) and which meet their admissibility requirements. Anyone who believes their rights have been violated can apply to have their case heard before an international mechanism. However, the right that the victim claims has been violated must be protected by the treaty in accordance with which the mechanism operates, and the respondent state must be a party to that treaty.
Before a case can be brought, all domestic remedies must be exhausted. This means using all the procedures available to a person in their own country to seek protection of their rights or to seek justice in respect of a past violation of their rights. These procedures include taking a case to court or making a complaint to the police. One must submit their case to the international mechanism soon after exhausting local remedies.
The international mechanism will require submitting an initial document explaining the case and why the mechanism can hear it.
- Human Rights Committee, for alleged violations of the International Covenant on Civil and Political Rights (ICCPR)
- Committee on the Elimination of Discrimination Against Women, for alleged violations of the International Convention on the Elimination of Discrimination Against Women (CEDAW)
- Committee Against Torture, for alleged violations of the Convention Against Torture (CAT)
- Committee on the Elimination of Racial Discrimination, for alleged violations of the International Convention on the Elimination of Racial Discrimination (ICERD)
- Committee on the Rights of Persons with Disabilities, for alleged violations of the Convention on the Rights of Persons with Disabilities (CRPD)
An individual whose rights under the relevant treaty have been violated by a state that is party to the treaty can file a complaint with a UN treaty body, so long as the state has recognized the competence of the committee to hear complaints. Third parties may complain on behalf of other individuals provided they obtain written consent.
The European Court of Human Rights (ECtHR) hears cases concerning alleged violations of the European Convention on Human Rights (ECHR). Any individual or organization can bring a case against a state that is party to the ECHR alleging that the state has violated his or her rights under the Convention. The individual or organization need not be a citizen of one of the states party to the Convention, but the violation must have occurred within the jurisdiction of a state that is party to the Convention.
The African Commission on Human and People’s Rights (ACHPR) hears cases concerning alleged violations of the African Charter on Human and Peoples’ Rights. Any individual or organization can bring a case against a state that is party to the African Charter alleging that the state has violated his or her rights under the Charter. Third parties can bring cases on behalf of others.