Credits: Antenor Hallo de Wolf
An Interview with Chris Esdaile on Third Party Interventions Before the European Court of Human Rights
By Eva Oeverhaus, Isabella Tolentino and Serafina Sidiropoulou
In the context of the course International Human Rights Law in Practice for our LL.M. International Human Rights Law at the University of Groningen, we had the honour to interview Chris Esdaile on third party interventions before the European Court of Human Rights (ECtHR).
Mr. Esdaile is senior legal advisor at REDRESS, where he has worked since 2017 with extensive experience in third-party interventions before, among others, the ECtHR. Mr. Esdaile’s expertise reaches way beyond third party interventions, as he mostly works on human rights claims concerning torture before international legal mechanisms, and has also worked on claims regarding ill-treatment by British forces during the war in Iraq, and on human rights in South Africa prior to apartheid. Before proceeding with the interview, we would like to once again express our thanks to Mr. Esdaile in his availability in sharing his expertise with us on third party interventions before the ECtHR.
The interview featured here is an excerpt from a more extensive interview conducted with Chris Esdaile.
Mr. Esdaile, what are the focal elements that you consider when deciding to get involved in a case as a third-party intervener?
The first element that we consider is our organisation’s limited capacity, as the work on these interventions must be done quite quickly. We are a relatively small NGO, classed as a charity in the UK, and our staff is just over 30 in total. The second point has to do with our mandate as an organization. We have charitable status governed by UK law, and we must continue to serve our charitable objectives and not stray outside of them. Most of our work is focused on obtaining reparations for survivors of torture, so almost all the interventions that we've got involved with will pertain to that issue. The third element would be the importance of the issue. We have intervened in many of the key cases of the ECtHR over the last 20-25 years in relation to Article 3 of the European Convention on Human Rights (ECHR). One of the things that we want to look at when we come to know about the possibility of making interventions, is to assess the importance of the issue and to work out whether we can make a contribution to the developing jurisprudence on those kinds of points.
Which is the case you consider the most challenging where REDRESS had to work as a third party intervener?
I am going to give the example of a case that even though I unfortunately was not directly involved in, I know from my colleagues that it is probably, by some distance, the most difficult that we have dealt with. It is not, however, an ECtHR case. It is the fairly recent case of Smith and Others v Minister Of Justice And Correctional Services, of which the final decision by the High Court of South Africa came only in 2023. The main reason why it was so challenging is due to, what seem to be, quite strict rules in South Africa on third party interventions. There was in fact a contested hearing on whether or not our third party intervention should be accepted by the Court. In South Africa, it is a rather more complicated process than in many jurisdictions, and certainly more complicated than the process in many of the international human rights mechanisms in which we work most commonly. Even though the case is important - it was the first time that a not so new law against torture in South Africa was actually being litigated - it was difficult for us in terms of the logistics - getting the permission - in that particular jurisdiction. The final decision actually is quite complimentary about our intervention, so I think in the end it was probably quite useful for the High Court.
In its Guide for third party interventions before the ECtHR, the European Network for National Human Rights Institutions mentions that these interventions should remain neutral and not be too ‘activist’. How do you remain impartial in the intervention, considering REDRESS’ key role in the advocacy for torture victims?
Our mandate, as an organization, is partly to work against torture and counter the practice of torture. This aligns very closely with the ECHR. We may in a way be classed as being activists because of the work that we do but this work is very much in alignment with the ECHR provisions. At the same time, the vast majority of us working at REDRESS are lawyers, and we are therefore trained to, and would habitually, word things fairly carefully. Additionally, we want to be seen at REDRESS as being an organization which is trustworthy and which people can rely on. Our advice and analysis needs therefore to be objective.
Furthermore, interventions before the ECtHR do not usually require engagement with the facts of the case. In fact, we would normally be very careful not to engage in the facts of the case. These interventions before the ECtHR are largely aimed at assisting it to explore some of the jurisprudential background and perhaps developments in other jurisdictions or in other mechanisms. It would not be appropriate for our campaigning to emerge in these interventions, as these interventions are not designed for that purpose. So we generally do not have a difficulty in advocating for a certain position in our work as REDRESS, but then focus our interventions on the legal issues relevant to that particular case.
Now, that does not mean to say that we do not have a commitment to obtaining reparations for survivors of torture. However, in order for us to achieve our advocacy objectives, we think that the best way we can do that is to be quite objective about the legal background. To remain objective we are not being tempted to talk about our commitment on how important it is that torture is eliminated, and how the Court could fulfil a really good role if only it made a certain decision. The Court is not going to find that a compelling argument. I think it will find it more compelling if the information and the background is given fairly dispassionately, objectively. Anyway, that is my view on neutrality and objectivity: it has a purpose and can be used as part of the toolkit that we employ to achieve our objectives as an organization.
What are the advantages and disadvantages of working on third party interventions alone and with other NGOs, like in the ECtHR case ‘Lapunov v Russia’ (in which REDRESS submitted written comments with four other NGOs)?
The advantages that in working with others, we share the burden of the drafting and preparation. Additionally, we would be able to draw on the experience of others, which can be very useful. For example, in the Lapunov case, we were able to work with ILGA-Europe, which has a fairly renowned expertise on some of the issues that affect the LGBTQ+ community across Europe, and not just focused on one individual country, so I think that working with another NGO or a group of NGOs can work well, especially if the different organizations bring distinct areas of expertise.
Some may come more from a factual understanding of how issues have developed, and a really close understanding of what has happened in an individual jurisdiction. Perhaps others may bring a more theoretical understanding of Article 3 issue, for example. The most recent submission we have submitted is on a case against France, where we did it jointly with Omega Research Foundation. This Foundation is specialized in weapons and crowd control techniques and tools, and this is an example of how they can bring expertise on the distinct tools and torture tools in this case, while we bring expertise on the legal side, which they would not have.
The disadvantages, on the other hand, are that sometimes it can be easier to do it yourself, as working with others can be an additional layer of complication in time and logistics to coordinate something that is relatively short - no more than 10 pages - between a number of different organizations. We normally get only three weeks to draft a third-party intervention from the time the permission is granted, and sometimes it will be less than that, depending on how long that permission takes to reach us. That can be difficult because if we, as REDRESS, are going to sign off on an intervention, we will want to make sure that we are across all of the arguments. If we divide the drafting between two or three different organizations, and we have 3 arguments, we have three different organizations drafting 3 different parts, and we will have to understand the arguments properly on the other issues that we are not drafting. In other words, as REDRESS, we are going to sign off on the content of the intervention as a whole, so we will want to be careful that we have understood all of the arguments, even if we are not drafting all of them. That means that in some ways, if we have gone through the trouble of understanding all the arguments then perhaps we may as well have drafted them. So I think that there are some disadvantages of those kinds as well.
To finish, one more advantage is that I think that doing it with a number of NGOs probably increases the chances of getting permission, because you are grouping those similar arguments together, and the Court will have less work to do in a single intervention rather than four or five. I think that we can demonstrate the importance of an issue if there are a number of different NGOs who are all joining together making similar arguments. In this regard, it is important to note the number of granted requests for third party interventions before the Court. According to data provided by the Court from January 2022 and October 2023, 734 third party intervention requests were granted, whilst 354 were refused. So you can see that, even though third party interventions are quite common, over 1/3 of the requests are not being granted.
To conclude, in the case al-Hawsawi v Lithuania, the ECtHR found that the respondent State unlawfully rendered, detained, and tortured Mr. al-Hawsawi’s rights whilst being in a US secret detention facility. You played a crucial role within this case, could you guide us through this process?
In this case we directly represented Mr. al-Hawsawi, who we have been representing since 2012. The process before the ECtHR started right at the end of 2016 and the judgment was delivered in January 2024. So, eight years to get through the ECtHR process. Our role in that was directly representing Mr. al-Hawsawi. The ability for us to deal with that in a normal way is very restricted, because of the circumstances of his detention in Guantanamo. We were not able to have the normal kind of contact that you would have with the client, and so there is in fact no statement for us to rely on. Most of the information that we relied on in that case was open-source information from publicly available documents, supplemented with some expert or witness evidence from people who were involved in some way in the process.
Thank you Mr. Esdaile for investing the time to address our questions.
Bios:
All three authors - Eva, Isabella, and Serafina - are current LL.M. students in International Human Rights Law at the University of Groningen, and their academic background differs.
Eva Oeverhaus graduated in Dutch Law at the University of Applied Sciences of Amsterdam.
Isabella Tolentino is a graduate of International Relations from the Pontifical Catholic University of Minas Gerais, Brazil.
Serafina Sidiropoulou has an academic degree in Greek Law that she obtained from the European University of Cyprus.