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Strategic Human Rights Litigation: Understanding and Maximising Impact

Strategic Human Rights Litigation: Understanding and Maximising Impact

Author: Helen Duffy
Publisher: Hart Publishing
ISBN: 9781509921973
Published In: September 2018
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Strategic human rights litigation (SHRL) is a growing area of international practice yet one that remains relatively under-explored. Around the globe, advocates increasingly resort to national, regional and international courts and bodies ‘strategically’ – to protect and advance human rights in a way that has a positive impact beyond the particular outcome of the case, or the parties to the litigation.

This book provides a framework for understanding SHRL and its impact, alongside its limitations and the many tensions and challenges it gives rise to. It suggests a reframing of how we view impact in its multiple dimensions, positive and potentially negative. Five detailed case studies, drawn predominantly from the author’s own experience, explore litigation in a broad range of contexts (genocide in Guatemala; slavery in Niger; forced disappearance in Argentina; torture and detention in the ‘war on terror’; Palestinian land rights) to surface the complexity of the role of SHRL in the real world. The book considers the implications of the impact analysis for the development of effective litigation strategies in the future.

Part I

1. Introduction

I. Introducing ‘Strategic’ Human Rights Litigation

II. Overview of Chapters

2. The Growing Field of ‘Human Rights’ Litigation in the World Today: Context, Trends, Opportunities and Challenges

I. An Expanding Panorama of Human Rights Litigation

II. Challenges and Limitations to Pursuing Human Rights Litigation

3. Understanding Impact: Bursting the Bubble on the Champagne Moment

I. Adjusting the Lenses to Capture the Impact of SHRL

II. Approaches to Impact and the Meaning of Success

III. Monitoring and (the Challenge of) Measuring Impact

IV. Classifications and Distinctions

4. Identifying Levels of Impact

I. Victim Impact

II. Legal Impact

III. Impact on Policy and Practice

IV. Institutional Impact, Including Judicial Strengthening

V. Information, Truth and the Historical Record

VI. Social or Cultural Impact

VII. Mobilisation and Empowerment

VIII. Democracy and the Rule of Law Impact

IX. Negative Impact

Part II

5. Case Study—Hadijatou Mani v Niger: Slavery before the ECOWAS Court

I. Introduction

II. Background

III. The Hadijatou Mani Case before the ECOWAS Court

IV. The Impact of the Mani Case

V. Conclusions

6. Case Study—Plan de Sánchez v Guatemala: Genocide in the Inter-American System

I. Introduction

II. Background

III. The Plan de Sánchez Case

IV. The Impact of the Plan de Sánchez Litigation

V. Conclusions

7. Case Study—Arbitrary Detention, Torture and Extraordinary Rendition: Litigating the ‘War on Terror’

I. Introduction

II. Litigating Arbitrary Detention

III. Litigating Rendition and Torture

IV. Conclusions

8. Case Study—Justice for Enforced Disappearance in Argentina

I. Introduction

II. Background

III. The Nature and Cumulative Impact of Litigation on Enforced Disappearance in Argentina

IV. Conclusions

9. Case Study—Litigating Palestinian Land Rights

I. Introduction

II. Background to Land Rights Litigation in Israeli Courts

III. Impact of Litigation on Land Rights before Israeli Courts?

IV. International Litigation on Palestinian Land Rights

V. Conclusions

Part III

10. Litigating Strategically and Meeting the Challenges

I. Strategic Planning (and its Limits)

II. Identifying Goals and Realistically Assessing Risks

III. Litigating in Context: Understanding, Naming and Framing the Problem

IV. Litigating for the Long Term: Incremental Change and the Question of Timing

V. Strategic Nibbling at the Edges of Injustice v Judicial Confrontation?

VI. Exploiting Litigation Synergies: Movement Building, Legal Advocacy and Reaching beyond the Court

VII. Case Selection, Sourcing and Tactics: Is there a Right Case at the Right Time?

VIII. Strategic Use of Fora

IX. The Victim in the Human Rights Process: Whose Case is this Anyway?

X. Additional Litigation Roles: Amicus, Expert or Observer?

XI. Effecting Change in Real Time: Litigating to Stop or Prevent Violations

XII. Creative Remedies and Implementation

XIII. The Economy of Human Rights Litigation

11. Conclusion: Appreciating and Demythologising Strategic Human Rights Litigation

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