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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.
Part 9 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 7: Participation in international meetings
NGOs can participate in some UN bodies without any special registration, including the most relevant body for minorities – the UN Forum on Minority Issues. NGOs attending meetings of the Human Rights Council, including the Universal Periodic Review (UPR), must have consultative status with the UN Economic and Social Council, called ECOSOC status. According to MRG, “Minority NGOs have reported that obtaining ECOSOC status, although difficult, has resulted in them being taken more seriously by their Government and by international actors, and sometimes has had a positive impact on their ability to access donor funds.”
Any NGO can submit information to the treaty bodies and attend treaty body meetings to lobby committee members. They are only required to inform the secretariat in advance to arrange accreditation. Any NGO can submit information to special procedures and meet with mandate holders without ECOSOC status. Any NGO can submit information to the UPR. Attending the review in person requires a special registration; however, the debates can also be watched on the UN webcast.
Access to regional bodies
- The African Commission on Human and Peoples’ Rights (ACHPR) grants observer status to NGOs, for which there is an application process.
NGOs without observer status may attend meetings of the ACHPR but they are not allowed to speak. NGOs with observer status sometimes allow other NGOs to make statements under their name.
- The Human Dimension Implementation Meeting of the Organization for Security and Co-operation in Europe (OSCE) is Europe’s largest human rights conference. NGOs from OSCE member states can participate in the meetings. There is an online registration process where NGOs need to provide some details about their work.
- The Association of Southeast Asian Nationas (ASEAN) has arrangements for granting affiliation to NGOs; however few, if any, NGOs working on human rights have this affiliation.
- There is no arrangement for NGO participation in the Summit of the South Asian Association for Regional Cooperation (SAARC). However, some organizations have received official recognition by the Association.
Many states are especially sensitive about minority issues. As such, minority NGOs need to understand the political realities of international bodies so that they can develop strategies to advance their issues despite the difficulties that can be encountered. At most international meetings, formalities such as formal language, protocol for speaking, and time-keeping take place.
It is important for NGOs to devise strategy that links their work at home with the setting of an international meeting. The opportunities available at these meetings generally fall under four categories:
- Dialogue with the government
- Media relations
- Structural or institutional issues
Writes MRG, “Minority rights is frequently a marginalized issue at the international level. Many states are either indifferent or hostile to efforts to improve minority protection.
It is therefore important that minority NGOs attending international meetings are visible, to remind states of the importance of the issue. This can be done by:
- Making statements highlighting minority concerns under different agenda items and not only under the item specifically dealing with minorities
- Speaking to a range of different government representatives about the importance of addressing minority rights (It may be easier to speak to representatives from neighbouring countries or the region)
- Updating MRG and other NGOs working on minority issues about the discussions that have been had to help improve overall strategy on minority rights internationally.”
In summation, planning a strategy before attending an international meeting is very important. NGOs cannot expect attendance alone to have an impact. NGOs need to take advantage of all available opportunities. These opportunities include meeting your government representative to discuss issues, meeting representatives from other governments, publicizing your issues through the international media, networking with other NGOs, and meeting with other potentially useful contacts such as UN staff. Minority issues are frequently ignored or marginalized at the international level. This means it is important for minority NGOs to participate fully and remind states of the importance of addressing minority concerns. Taking time to get involved with institutional issues such as establishment or renewal of human rights mandates may lead to new or improved opportunities in the future.
“It’s a dangerous time to be dark-skinned in Tripoli,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “The NTC should stop arresting African migrants and black Libyans unless it has concrete evidence of criminal activity. It should also take immediate steps to protect them from violence and abuse.” After interviewing detainees, Human Rights Watch and Amnesty International found that the majority of arrests were based on skin color, following from the fact that Muammar Gaddafi used sub-Saharan Africans as mercenaries. “The NTC has legitimate concerns about unlawful mercenaries and violent activity, but it can’t simply arrest dark-skinned men just in case they think they might be mercenaries,” Whitson said.
Amnesty International focused its study on the Tawargha tribe, in a town of the same name used as a Gaddafi stronghold. North Africa researcher Diana Eltahawy said there was no doubt that some Tawarghas fought alongside Gaddafi, “But anyone responsible should be brought to justice in fair trials; not dragged out of hospital beds on the assumption that all Tawarghas are ‘killers’ and ‘mercenaries’. The whole population should not have to suffer.”
The Human Rights Watch report, released September 1, said, “the sub-Saharan Africans were in overcrowded cells with a putrid stench; one cell had 26 people and six mattresses. The African men Human Rights Watch interviewed complained of inadequate water, poor sanitation, and not being allowed to make phone calls to ask family members to bring their documents.”
Photos (from top): africanspotlight.com, theatlanticwire.com
On Wednesday, the International Criminal Tribunal for Rwanda (ICTR) referred one of its cases to the Rwandan judicial system. The case is that of Jean-Bosco Uwinkindi, a Rwandan Pentecostal pastor charged with genocide, conspiracy to commit genocide, and extermination as a crime against humanity. He was arrested in Uganda in June 2010 and has been in the tribunal’s custody since July of that year.
Previous requests for referral to the Rwandan courts were rejected by ICTR judges on the basis that a fair trial could not be guaranteed. In this case, however, the court noted that “Rwanda had made material changes in its laws and had indicated its capacity and willingness to prosecute cases referred by the ICTR adhering to internationally recognised fair trial standards enshrined in the ICTR Statute and other human rights instruments.” Uwinkindi’s referral is the first one granted since Chief Prosecutor Hassan Bubacar Jallow filed three new transfer requests based on his determination that the legal climate in Rwanda had changed enough to allow fair trial for the accused.
In their ruling, the ICTR judges requested that the African Commission on Human and People’s Rights be appointed to monitor the Rwandan proceedings for fairness.
The ruling, which Rwandan pro-government daily The New Times labeled “a vote of confidence in the Rwandan judicial system,” follows the UN Security Council’s Resolution 1966 asking the tribunal to find ways to wrap up all cases by 2014.
Africa: Civil society groups urge governments to support ICC
A report by African civil society groups and international organizations working in Africa calls on African member states of the ICC to cooperate with and continue supporting the actions of the International Criminal Court. Titled “Observations and Recommendations on the International Criminal Court and the African Union,” the report criticizes AU requests for delays in ICC prosecution of Sudanese president Omar al-Bashir and in the investigation of Kenya’s 2007-08 post-election violence, and condemns AU reluctance to support Security Council Resolution 1970 on Libya.
The organizations, numbering 125 and based in more than 25 countries, make seven recommendations to Africa’s 32 ICC member states: 1) support the ICC at AU summits, 2) push for accountability for serious violators of international law in Darfur and Kenya, 3) voice objections on Kenya and Darfur to the Security Council rather than the ICC, 4) address concerns about plans to expand jurisdiction of the new African Court of Justice and Human Rights, 5) cooperate with ICC prosecution of crimes in Libya, 6) comply with obligations regarding people targeted by ICC warrants, and 7) take a more active role in selection of the next ICC prosecutor.
Currently the African Court of Justice and Human Rights is allowed to rule on general legal matters and human rights treaties. The AU has proposed widening its jurisdiction to criminal prosecution for genocide, war crimes, and crimes against humanity. Noting the complexity of these cases and the region’s lack of experience in handling them, the report advises caution. If the African Court moves ahead, says the report, it must adhere to international legal and procedural standards, have access to adequate resources to conduct investigations, and clarify its standing to make sure it doesn’t undermine ICC authority.
The recommendation regarding the Bashir warrant appears to be a response to the AU call for members not to cooperate with the arrest, while the plea for cooperation with the ICC on Libya aims to ensure that African concerns about military action don’t obstruct justice for crimes against civilians.
Photo: Human Rights Watch
Libya set the stage for a full-blown test of the Responsibility to Protect principle, adopted by the UN in 2005. The Economist published an in-depth article discussing the positives and negatives of the application of R2P in Libya, and the power politics that accompanies it.
Ivory Coast president Alassane Ouattara has reiterated that his predecessor, Laurent Gbagbo, must be tried for crimes committed during the deadly standoff that followed last year’s disputed election. Ouattara told France 24: “Justice must be rendered. Impunity must be ended in Ivory Coast. Especially for war crimes; crimes against humanity. These are very serious matters.”
After a preliminary examination, the ICC Prosecutor concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the court had been committed in Côte d’Ivoire since 28 November 2010. The case has been assigned to pre-trial chamber II.
A former bourgmestre (mayor) of Kabarondo Commune in Rwanda, Tito Barahira, has been arrested in France on six indictments, including genocide and conspiracy to commit genocide, AllAfrica.com reports. “We definitely commend this arrest, especially as we are going into the difficult days of commemorating our dear ones that were killed in cold blood during the 1994 genocide against the Tutsi,” John Bosco Siboyintore, the acting head of the Genocide Fugitives Tracking Unit, said.
Auschwitz Institute instructor Sheri Rosenberg published an article in the Gulf Times of Qatar titled “The responsibility to protect: Libya and beyond.” Rosenberg, who is director of Cardozo Law School’s Program in Holocaust and Human Rights Studies and also its Human Rights and Genocide Clinic, writes that “it is unquestionably positive that the world powers have reacted to protect innocent lives, as the reality and threat of massacres in Libya was apparent to all,” but she is careful to emphasize that “the use of military force is a last resort and not the poster child of the evolving international policy doctrine known as the Responsibility to Protect.”
Nicholas Kristof, writing about the Libyan intervention in the New York Times, argued that the world must not forget that “Mr. Obama and other world leaders did something truly extraordinary, wonderful and rare: they ordered a humanitarian intervention that saved thousands of lives and that even Col. Muammar el-Qaddafi’s closest aides seem to think will lead to his ouster.” Kristof writes that it has been rare for major powers to intervene militarily for predominantly humanitarian reasons, but he hopes the Libya intervention will give more teeth to the Responsibility to Protect doctrine.
A humanitarian crisis is still looming in the Ivory Coast, the BBC reports. Continued fighting has resulted in necessary supplies decreasing for many civilians. Reuters Africa reported that after France’s intervention last week, Laurent Gbagbo, who refuses to step down as president despite having lost elections last year, has continued to negotiate his possible departure.
The intervention in Libya shows a shift in thinking about mass atrocities, Michael Abramowitz writes in the Washington Post. Abramowitz, director of the Committee on Conscience at the U.S. Holocaust Memorial Museum, argues that the decision to act in Libya followed reflection in the international community about the failures to prevent genocide in the 1990s in Rwanda and Bosnia-Herzegovina. “Over the past 20 years, new policies and mechanisms by civil society and governments that strengthen our collective capacity to prevent and respond to genocide include the creation of an office of genocide prevention.”
Rwanda applauded the life sentence given to former senior government official Jean-Baptiste Gatete for his involvement in mass killings during the 1994 genocide, Agence France-Presse reported. “He got a deserved sentence. Gatete is the symbol of death and destruction in this country. In eastern Rwanda he is known as the Butcher of Murambi,” Rwandan Justice Minister Tharcisse Karugaram said.
Amnesty International has warned of a “human rights catastrophe” in Côte d’Ivoire. “Côte d’Ivoire is facing a major humanitarian crisis. The parties to the conflict must immediately stop targeting the civilian population,” said Salvatore Saguès. “The international community must take immediate steps to protect the civilian population.” Forces loyal to Alassane Ouattara reached the commercial capital of Abidjan raising the alarm.
Photo: Amnesty International
The International Crisis Group has released an open letter to the UN Security Council on the situation in Côte d’Ivoire. The letter expressed the deteriorating humanitarian and security situation in the country and urges the Council to “swift action to halt the fighting and prevent ethnic cleansing and other mass atrocity crimes”.
The United States Holocaust Museum has released a paper on speaking out against rape as a weapon of genocide. The paper noted that for the first time ever, following the conflict in Rwanda, an international tribunal handed down a judgement for genocide including the crime of rape. “Perpetrators assault women as a way to assault the past, present, and future of targeted groups.” Women must continue for inclusion of a gendered perspective into efforts to respond to conflict, particularly genocidal violence the paper stated.
Ernest Gakwaya, alias Camarade, and Emmanuel Nkunzuwimye, two Rwandan men accused of taking part in the 1994 Genocide have been arrested in Belgium reports AllAfrica.com.
The Libya conflict has reopened the R2P debate on Burma, Irrawaddy.com reports. Burma is ravaged with geopolitical problems and a mounting humanitarian crisis. France and US warships with humanitarian aid were rejected from landing in Burma in 2008 by the Burmese regime. At the time, many in the UN argued that a legitimate case of intervention under R2P was justified as the regime’s refusal fell under the loosely worded R2P mandate. More recently though, in early 2010, UN Special Rapporteur on Human Rights to Burma Tomás Ojea Quintana reported to the UN’s Human Rights Commission and called for a Commission of Inquiry into possible crimes against humanity and war crimes in Burma.