Going to court to protect the rights of refugees and migrants: An overlooked tool for positive change
Image Caption: Amnesty International Canada and pro bono legal team, after the hearing at the Supreme Court of Canada for Febles v Minister of Citizenship and Immigration, March 2014. From left to right: Justin Dubois, Anna Shea, Jennifer Klinck, Perri Ravon, Michael Sabet, Alex Neve.
The key question for anyone hoping to change the world is simply: how?
For my colleagues and I in Amnesty International’s Refugee and Migrant Rights Team, the answer is: by using every means at our disposal to defend human rights. Faced with xenophobia, hostility and closed borders – all experienced by refugees and migrants long before the coronavirus pandemic – my team employs many techniques, including research, casework, advocacy and campaigning. These strategies tend to be widely recognized and understood.
One approach that is less well-known among civil society organizations is strategic litigation.
The term “strategic litigation” is quite straightforward. All it means is going to court to protect human rights. The “strategic” part means that we choose which cases to pursue based on our objective of achieving systemic change for many people. Amnesty International engages in this type of work in order to change laws, policies and practice, and to secure remedies or relief following violations. Strategic litigation is often also about raising public awareness of an injustice.
In the realm of human rights, strategic litigation is far from new, nor was it spearheaded by Amnesty International. Anti-slavery activists began using this tool centuries ago: the 1772 English case of Somerset v Stewart – brought by James Somerset, an African man who had been captured and sold into slavery – was an important step on the road to abolishing slavery. In the 1870s, the litigation repeatedly filed by former slave Luiz Gama in Brazil ultimately helped free over 500 enslaved people.
But strategic litigation really came into its own in the second half of the 20th century. One of the most important judgments is from 1954. In Brown v. Board of Education (a set of five lawsuits launched by the National Association for the Advancement of Colored People (NAACP)), the US Supreme Court ruled that laws establishing racially segregated public schools were unconstitutional. Although much strategic litigation over the past few decades has originated in the US, the technique has become increasingly globalized and used by many people, organizations and communities around the world.
In Amnesty International’s litigation work, occasionally we act as a main litigant, but usually we are a “third-party” intervener – sometimes known as a “friend of the court” (amicus curiae). This means that we participate as an independent expert on human rights laws and standards, providing judges with insights into areas of law that they might not be familiar with. We usually do not take an explicit position on which side should win, but instead explain what a country’s international and national human rights obligations entail in a given context.
The Refugee and Migrant Rights Team’s first court case dates back to 1999. Since then, we have participated in 50 cases around the world. As of July 2020, we are currently involved in an additional 10 ongoing cases. Although Amnesty staff always play a key supervisory and coordinating role, we rely on a tremendous network of lawyers to do the bulk of the drafting and pleading (i.e. writing documents and arguing in court), which they almost always do free of charge (pro bono). In addition, many of my team’s interventions are done jointly with other civil society organizations, such as the AIRE Centre, the European Council on Refugees and Exiles, and the International Commission of Jurists. These collaborations help share expertise and spread the workload.
Amnesty’s portfolio of 60 cases (50 past and 10 ongoing) on the rights of refugees and migrants goes beyond “refugee law” per se, covering a range of issues. To be sure, much of the litigation is indeed directly concerned with international refugee law matters, such as the principle of non-refoulement (the ban on sending anyone to a place where they might be tortured or suffer other serious abuse). But other litigation is about international human rights law more broadly – civil and political rights (such as the right to due process protections) as well as economic, social and cultural rights (for example the right to health). And other cases are concerned with complex doctrines of international law, for instance in Belhaj and another v. Jack Straw and others at the UK Supreme Court. In that case, we argued that Mr. Abdul-Hakim Belhaj’s claims that the UK authorities were complicit in his torture in Libya should be examined by UK courts; the UK Supreme Court agreed.
The geographic range of my team’s litigation is impressive. The 60 cases we’ve been involved in have taken place in 13 national-level courts (Australia, Canada, France, Hong Kong, Ireland, Italy, Kenya, Nauru, Papua New Guinea, South Africa, South Kora, UK and US) and at four regional or international bodies (Inter-American Commission on Human Rights, Court of Justice of the European Union, European Court of Human Rights and UN Human Rights Committee).
Practically speaking, what has been the tangible impact of our involvement in dozens of refugee and migrants’ rights cases around the world? This is not an easy question to answer. Because judges tend to avoid citing third party interveners like Amnesty International, it’s difficult to draw a clear causal link between our own intervention and the resulting judgment.
However, there’s no doubt that the litigation we’ve been involved in has had an important effect on legal standards affecting many people. Here are a few examples:
Expanding refugee protection to LGBTI people:
In one of our earliest interventions, we intervened in a groundbreaking case in Australia that allowed people to seek asylum based on their sexual orientation. The appellants, identified in court documents as S395 and S396, were a gay couple from Bangladesh. The 1951 Refugee Convention does not mention sexual orientation as a basis for obtaining international protection, and this was the first time that a final appeal-level court anywhere in the world had considered an asylum application based on these grounds. In its December 2003 judgment, the High Court of Australia rejected the previously common notion that people seeking asylum should be expected or required to conceal their sexual orientation back home.
Defending the rule of law on the high seas:
In Hirsi Jamaa and Others v Italy, a landmark judgment from 2012, the European Court of Human Rights ruled that the high seas are not lawless zones, and that Italy has an obligation to respect international law when it intercepts asylum-seekers in the Mediterranean Sea. Amnesty International intervened in the case, along with other civil society groups, arguing that Italy’s policy of automatically pushing people back to Libya violated international law.
Exonerating people who help family members:
In 2015, the Supreme Court of Canada published an important decision in the case of B010 v. Canada. Amnesty International had taken part in the case, arguing that people who assist others fleeing persecution, and who receive no financial or other material gain for their actions, should not be considered smugglers. The court agreed with us, deciding that humanitarian assistance between family members does not amount to people-smuggling.
Protecting hundreds of thousands of Somali refugees in Kenya:
This case arose after the government of Kenya abruptly announced that it would be closing the refugee camp in Dadaab, as well as the Kakuma camp and the country’s Department of Refugee Affairs. The closure of the Dadaab camp would have put 260,000 refugees at risk of forced return to Somalia, where they would have faced a serious risk of human rights abuses. Amnesty International supported a successful petition to the High Court of Kenya brought by two Kenyan organizations – the Kenya National Commission on Human Rights and the Kituo cha Sheria Legal Advice Centre – challenging the government orders. In its February 2017 decision, the High Court held that the decision to close the Dadaab camp was unconstitutional.
Ensuring people with irregular migration status have access to healthcare:
Ms. Nell Toussaint brought this case to the UN Human Rights Committee, which supervises the implementation of the International Covenant on Civil and Political Rights, one of the world’s most widely ratified human rights treaties. Toussaint had entered Canada as a visitor but stayed on without documentation. While she was in the process of regularizing her immigration status, she developed serious health conditions requiring medical treatment. After the government denied her care, she submitted her case to the Human Rights Committee. Amnesty International supported her case, arguing that preventing an irregular migrant from getting essential health care and treatment was in breach of international law. The Human Rights Committee agreed with us in a groundbreaking decision in 2018, saying that by denying Ms. Toussaint access to relevant health services based on her irregular migrant status, resulting in life-threatening harms, Canada had violated her right to life.
Clearly, each of these individual cases represents an important legal milestone. But more broadly, what can we identify as the key lessons to emerge from Amnesty’s strategic litigation?
Amnesty International is in the early stages of such an endeavour. In 2015, Francesca Pizzutelli from the Refugee and Migrants Rights Team documented the organization’s litigation at international tribunals. In 2019, an internal study of the organization’s complete portfolio of strategic litigation identified a number of important lessons. Also in 2019, Alex Neve – Secretary General of Amnesty International Canada’s English branch – offered reflections on what his office has learned and achieved from many years of work in the courts. He highlighted the importance of grounding litigation in existing bodies of work, collaborating with partner organizations and respecting the rights and wishes of claimants. Other organizations are further along in the process of analysing the impact of their litigation. For instance in 2018, the Open Society Justice Initiative undertook an ambitious, multi-year inquiry into its litigation efforts around the world, drawing on hundreds of interviews across 11 countries.
Based on other organizations’ research, academic studies, as well as personal experience, I would suggest that civil society organizations who are thinking about embarking on a strategic litigation project should consider the following factors.
- Role: As Amnesty International Canada’s Alex Neve observes, a key question is which role to play in the litigation, which in most jurisdictions means either acting as a primary litigant (i.e. initiating the litigation) or a third-party intervener. Clearly, the resources required of the former are much greater than the latter. But this can be appropriate, for instance when it’s too risky or expensive for individual litigants to take the lead.
- Relationships: For organizations acting as third-party interveners, the most important relationships are with the plaintiffs / applicants – the people whose rights are at stake, and who may be put at risk by going to court. At the same time, it’s important to recognize that when acting as an independent intervener who is not taking a position on the outcome of a case, it’s crucial to maintain appropriate boundaries vis-à-vis the rights-holders. Also crucial are relationships with counsel, and with other people and organizations involved in the case, or in related campaigning or advocacy efforts. Maintaining collaborative, transparent and honest relationships with key actors is essential. Organizations also need to ensure they are able to maintain these relationships over a long period of time.
- Time: The timeframe for litigation-planning often needs to be conceptualized in years or sometimes even decades. Going to the courts is a notoriously time-consuming process, and each individual case entails many court proceedings. Long-term commitment is needed both throughout the proceedings and then crucially during the implementation phase (see further below). For instance, Amnesty International Canada recently (July 2020) achieved an important victory at the Federal Court in their challenge to the US-Canada Safe Third Country Agreement – they had been working towards this outcome for over 15 years, and the struggle is still not over.
- Money: This is closely linked to the above. Organizations acting as third-party interveners (as Amnesty usually is) will rarely be asked to pay if the judgment doesn’t go their way, and legal counsel usually act free of charge. However, devoting staff time to overseeing these projects and maintaining relationships with affected individuals and communities, nonetheless represents a significant cost. At the same time, litigation can often bear fruit for relatively little investment compared to the complex research reports of the kind produced by Amnesty.
- Diversity of interests: Different individuals or groups involved in a litigation initiative might have – or develop – different and sometimes competing interests. An individual litigant, for instance, might be offered financial compensation from a government or company in order to drop the case, when it looks like they might win if it goes ahead. The person in question may accept the settlement agreement, to avoid the enormous stress and cost of protracted proceedings. While this is a good result for the person whose rights were violated, organizations like Amnesty might have wanted to pursue a different outcome, because without a positive judgment, the legal standards we’re trying to change won’t improve. And of course, even within civil society groups, there is a diversity of interests. Common terms like “community” or “movement” obscure the very real divergence of priorities and interests that exist within organizations and social movements. Legal scholars like Douglas NeJaime have argued that the individualist model of litigation – as opposed to more democratic decision-making models – can create a risk of internal conflict and movement-fragmentation.
- Implementation: Achieving the sought-after judgment is just one step towards effecting positive change; the decision needs to be implemented before it can have any practical effect. For instance, the US Supreme Court in the celebrated judgment of Brown v Board of Education did not order all schools to immediately desegregate in 1954. Instead, the NAACP’s Legal Defence Fund had to go to court many more times, culminating in further decisions in 1968 and 1971, before the Supreme Court finally ordered that segregation be comprehensively dismantled.
- Multiple lenses to evaluate effectiveness: I am borrowing this concept from scholar Helen Duffy, who says we should avoid a simplistic success / failure binary, and instead use a variety of “lenses” to judge whether strategic litigation has been effective. First, she says, we should use a high-focus lens to see the specific ways in which the litigation has influenced victims, survivors, communities, perpetrators, institutions, legal standards, public policy, attitudes and behaviours. Second, she argues, we need a time-lapse function to evaluate the meaning of the decision over time, as sometimes a judgment’s significance isn’t clear until years or decades after it has been decided. Duffy’s third lens is a wide-angled view, to take into account the entire legal and societal context in which the litigation unfolds. Indeed, as the NAACP recently observed in its analysis of Brown v Board of Education:
“The legal victory in Brown did not transform the country overnight, and much work remains. But striking down segregation in the nation’s public schools provided a major catalyst for the civil rights movement, making possible advances in desegregating housing, public accommodations, and institutions of higher education. The decision gave hope to millions of Americans by permanently discrediting the legal rationale underpinning the racial caste system that had been endorsed or accepted by governments at all levels since the end of the nineteenth century.”
- Multiplicity of strategies: All organizations and scholars underline the importance of embedding a litigation strategy within a constellation of other approaches, such as advocacy, research, human rights education and campaigning. Amnesty’s Business, Security and Human Rights Team, for instance, has not only done groundbreaking research and campaigning for over 20 years on Shell’s human rights abuses in the Niger Delta; they have also supported Esther Kiobel’s legal team to bring a case to the courts in the Netherlands in 2017, which is still ongoing.
An example from beyond Amnesty is the Indian case of People’s Union for Civil Liberties vs Union of India & Others. This strategic litigation was launched by the People’s Union for Civil Libertie (PUCL). In their April 2001 petition to the Supreme Court, the PUCL argued that the central and state governments had violated the right to food by failing to respond to a devastating drought, and by allowing food stocks to accumulate while people starved. The litigation took 16 years to wrap up. During that time, the Supreme Court issued several interim orders, and the scope of the litigation expanded to include other issues, such as urban poverty, the right to work, as well as government transparency and accountability. The litigation led to the foundation of a nationwide Right to Food Campaign, the enactment of the 2013 National Food Security Act, as well as the development of entitlements for food-related assistance and grievance mechanisms. While the case was ongoing, the Right to Food Campaign spent years monitoring, reporting, organizing, lobbying and campaigning, including on the right of all schoolchildren to a mid-day meal. The case’s significance is undeniable. And yet, without a nuanced view of its effectiveness (as discussed above), some might mistakenly think it was a failure – in 2017, the Supreme Court of India brought the case to an end, stating that after the passage of the 2013 legislation, “nothing further survives in this petition.”
- Risk: One risk inherent to any litigation is that if it doesn’t go the way we hope, it can lead to a deterioration of human rights protections or the solidification of an existing negative legal standard. One of the most famous such cases was Plessy v Ferguson, when in 1896 the US Supreme Court approved segregation between African Americans and white Americans. The case had been launched by the Citizens Committee of New Orleans in an attempt to bring down Louisiana’s segregation laws. It took another half a century before the judgment’s racist “separate but equal” doctrine was overturned by Brown v Board of Education in 1954. Another risk is harm to individual litigants, who may be placed in situations of vulnerability by engaging in litigation against powerful states or companies. One extreme and tragic case is that of Zeki Aksoy, a man whose murder in 1994 was allegedly as a result of his claim against Turkey for torture, which he had filed at the former European Commission on Human Rights.
- Humility: Because civil society organizations are often competing for a limited pool of financial support from foundations and other donors, they can experience tremendous pressure to demonstrate successful impact. Of course, this isn’t restricted to strategic litigation, but applies to all strands of work done by human rights groups. And the danger of losing funding is all too real, with well-respected organizations like Interights forced to close, despite a remarkable track record in strategic litigation. Nonetheless, organizations should insist on remaining honest about the real – though not insurmountable – challenges in attribution, and stay humble about the impact of their own contribution. This is particularly the case for such a well-known and large organization such as Amnesty. And crucially, funders must recognize the truth that tangible and long-lasting impact in human rights work depends on a multiplicity of actors, working collaboratively at many levels and for many years.
No one would claim that strategic litigation is a panacea that can unfailingly remedy past rights infringements, stop ongoing violations or prevent future abuse. But as I hope I’ve shown, it should be more commonly considered as a potential strategy – among many – for activists around the world, and as a tool that can contribute to real and substantial human rights change.