We were pleased to speak with Prof. Dr. Helen Duffy about the practical challenges and opportunities of strategic human rights litigation during the course “Human Rights in Practice”, as part of the Master’s program in International Human Rights Law at the University of Groningen. This interview is conducted and published in the context of the Human Rights Here blog series of interviews intended to mark the 60th Anniversary of the adoption of the International Covenant on Civil and Political Rights (ICCPR) and its First Optional Protocol (OP1-ICCPR). Prof. Dr. Helen Duffy is an experienced international human rights lawyer who has contributed significantly to the development of the field and has represented victims of human rights violations in landmark cases before regional and international courts and tribunals, including in the Human Rights Committee. Next to her legal practice, Prof. Dr. Duffy is an author, academic, and advocate.
The following is an excerpt from a more extensive interview.
Strategic litigation often pursues structural change beyond the individual. Have you ever encountered tensions between the client’s interest and the strategic goals of litigation, and how do you navigate this? What are the factors and risks that hinder strategic litigation?
Great questions, but quite complicated ones. You pursue structural change in different ways, for example, through changes in institutions and laws, or in social norms and attitudes. I think one of the most challenging aspects, and one that is least explored and understood by any of us, myself included, is how litigation can play a role in changing people’s attitudes towards those who are disenfranchised, vilified, or discriminated against. How can it change attitudes toward human rights and the rule of law in a way that makes people think it really matters? I think litigation can play a role in that, but we need to understand this better and maximise it in practice.
One of the tensions in strategic human rights litigation is that human rights lawyers and NGOs often have their own mandate and agenda for change, which is positive and natural but can raise issues we should be aware of. Often, NGOs are the essential catalysts and drivers, and sometimes even the legal representatives, in strategic litigation. These agendas are not a problem, but what is really crucial, and sometimes underemphasised, is that a case is brought in someone else's name, belongs to victims and survivors that are central to the case and that any decisions should be theirs. Even though broader strategic goals may be pursued, and addressed by being agreed upon at the beginning, the case belongs to people and communities, not to lawyers and NGOs. It is their voice, it is their process.
I certainly do not want anyone to think that NGO involvement is an inherent problem. The opposite is true. The fact is, if NGOs were not involved, much of this work would not be happening. Indeed, one of the biggest challenges to human rights litigation is the attacks on NGOs and human rights defenders all over the world, so it is really important that we protect that role.
At the same time, we need to recognise tensions between people’s goals and be transparent about them. In practice, I do not think this comes up or poses a problem as much as we might expect, as many victims, survivors, and communities bring these cases because they share the strategic goals of human rights advocates. They want change, and are often part of a movement realising that litigation is a slow process of moving towards that change. But this is not necessarily the case. One common tension arises when individual victims decide they no longer want to continue with a case. And why not? Some withdraw because they are under pressure; because there is little or no protection and support for victims and witnesses; or because they are commonly stigmatised, threatened, or attacked for bringing litigation. Or because proceedings take so long that people lose confidence. So, it is not surprising that they may drop out, and this can be a real challenge. NGOs and lawyers may have invested enormous amounts of time and resources, and the case may present an opportunity for broader change. One can think strategically for example bringing multiple cases to guard against the impact of this, and of course try to mitigate these risks. Nevertheless, it is not our case as lawyers or NGOs. If a victim or survivor wants to withdraw, they withdraw, and that is it.
You represented Abu Zubaydah at the ECtHR and in front of the UN Working Group against Arbitrary Detention. He was awarded a large sum in pecuniary damages, but is still being detained in Guantanamo Bay and is unlikely to be released soon. We could say that the case did not meet its ‘full potential’ in stopping violations against him, particularly due to lack of enforcement. Does this weaken your belief in international law?
Of course, such egregious violations as torture and arbitrary detention of Abu Zubaydah, together with the lack of accountability for it, 24 years later does shake your faith in the relevance of international law. It is meant to apply to all states and protect all individuals, and this case reminds us of the reality which is very different.
By way of background, Abu Zubaydah is a Palestinian man, detained by the CIA after the 9/11 attacks and transferred between secret detention sites where he was tortured. Yet he has never been charged with a crime or received a habeas corpus ruling on the lawfulness of his detention. The rendition programme he was subject to is characterised by complete brutality, complete arbitrariness and complete lack of accountability. In the lawless world of Guantanamo Bay, releasing him is essentially a political decision, and there is no process that is likely to work to give effect to his rights or rule of law.
Abu Zubaydah’s litigation has highlighted this and helped provide pathways towards addressing the problems, but there is a long way to go. Interestingly, for example, the ECtHR instructed Lithuania to ‘make representations’ to the US to bring an end to the violations against him. Poland and Lithuania, of course, cannot control what the US does, but the judgment (Abu Zubaydah v. Lithuania, No. 46454/11) recognises that those that contributed to the wrong, now need to try and end it. And that is what we have been trying to do since then: through the UN Working Group which called for his immediate release, and through national proceedings. This international interest also serves as a reminder to the world that Abu Zubaydah is still being detained and that the wrong continues. This matters not only for him but for others in arbitrary detention as well, because states must not cooperate on a no questions asked manner with international wrongs. And we have to put pressure on them to provide reparation when they do, by asking: “Why is he still detained and what are our governments doing to stop it.” Sadly, the case sends a dangerous message and gives credence to the idea that some states can do what they want without any accountability. This has contributed to some of the worst violations we see around the world today. Litigation pushes back against that and gives us tools to solve such issues and to raise awareness.
There are many other non-legal ways to raise awareness, through media communication, setting up exhibitions or making movies, which we have also done for his case. So, litigation should be seen as playing a role within a broader range of forms of exposing and dealing with this injustice. Abu Zubaydah is a perfect example of how law and strategic litigation provide one tool for fighting injustice that can lead to others, like more media coverage or policy engagement. But the results are limited while he remains in prison without charge or trial 24 years on.
While this is outrageous, we also have to be realistic about what the law and litigation can and cannot do and what conclusions to draw about the role and relevance of international law, which I believe is more important than ever. Law has always been selectively respected across the world, but that does not mean that it cannot work. Sometimes courts are not the way to solve people’s problems. We have to insist on universal, fair and consistent application of the law, but we also have to be realistic. Litigation is a tool, it is not a solution.
Finally, what are the most important takeaways that upcoming human rights lawyers should be aware of?
I believe a very big takeaway is that strategic litigation can, even when it doesn’t achieve its full potential, or have the impact we seek, really make a difference. It provides us with tools that we can use to try to meet these enormous challenges that we are facing globally today. One of those that we need to pay heightened attention to, is the long-term imperative of protecting, supporting and investing in democratic actors, so that the democratic system, which is an essential pillar of human rights protection, can function. Litigation can play a small role in helping to strengthen democratic actors through exposing attacks against individuals and their human rights. Litigation cannot resolve this entire struggle, but it is one small yet essential part of it.
This leads to the next important takeaway, we should not elevate litigation and think it is going to provide solutions. We need to make sure that it is only one part of this much broader move for change. We need to keep insisting on the importance of human rights and the rule of law, in all of our different ways, including oversight by judicial and quasi-judicial bodies. If people understand the importance of that, then I hope eventually they will realise the need for some kind of mechanism of enforcement.
Yet the reality is that states are threatening to pull out of international and legal accountability frameworks all the time. Systems are under-resourced and under attack. Among the many risks is that this influences the effectiveness of the systems, that judges become afraid, and we should resist that. We need to defend judicial independence on the international, regional and national level as well. It is crucial that judges keep doing their job and robustly call out violations despite risks to them or the systems. There are limits to the judicial role we also need to be realistic about. They cannot rewrite the law, even if sometimes we want them to as advocates, but they do have to interpret it to give it meaningful effect in the real world. International and regional courts and bodies play a really important role when governments are not meeting their obligations. Until we develop better accountability and enforcement mechanisms for violations of human rights, humanitarian law and the law on the use of force, we will continue to see these violation cycles. For example, there has been virtually no accountability for notorious human rights violations during the War on Terror. Has this development contributed to what we are seeing around the world today in terms of violations by the U.S.A. and partners? I think it has. There is a clear connection between the two, and maybe if we are wise we will learn lessons from that for the future. There can be no doubt that we really need international law, and independent courts and bodies to enforce it, now more than ever.
Interviewee
Helen Duffy is an experienced practicing international lawyer. She has been Professor of International Human Rights and Humanitarian Law at the Grotius Centre for International Legal Studies of Leiden Law School since January 2015.
Bios
Aidana Bock is a recent graduate in International Human Rights Law at the University of Groningen. She also holds a Bachelor of Arts in Globalization, Governance and Law from Karlshochschule International University.
Kata Jácinta Éles is a double LL.M. graduate in International Human Rights Law and Global Criminal Law from the University of Groningen. She holds an L.L.B. in International and European Law from the same institution, supplemented by an Honours College diploma.
Ana Sušin is a BA graduate in International Studies from Leiden University, currently pursuing an LL.M in International Human Rights Law at the University of Groningen and a MA in International Relations: Global Conflict in the Modern Era at Leiden University.