In this discussion topic, we're exploring the lessons we can learn from past experiences. Consider these questions below when sharing your comments in this discussion topic:
- From your experience, or from your reflection in this online discussion, what advice or ideas could you share for human rights practitioners who are interested in engaging regional human rights mechanisms?
- What resources exist to support the human rights community in engaging regional human rights mechanisms? Share any guides, websites, videos here!
Share your thoughts, experiences, questions, challenges and ideas by replying to the comments below.
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You may find ESCR-Net's online database of human rights cases helpful. Are there other organizations who collect, organize and share caselaw within regional systems?
- Kristin Antin, New Tactics Online Community Builder
The African Human Rights Case Law Analyser managed by the Institute for Human Rights and Development in Africa is a fantastic resource. It collects case law primarily from the African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights, but also contains some decisions from the African Committee of Experts on the Rights and Welfare of the Child, the ECOWAS Community Court of Justice, the SADC Tribunal, and the East African Court of Justice.
Thank you, Kristin and Rachel - the ESCR-Net and Case Law Analyser are both fantastic resources (as are the manuals and other tools that Rachel has mentioned below on the African Commission).
With regard to other regional systems and the UN, some of the most useful case law databases (in addition to ESCR-Net and the African Human Rights Case Law Analyser) we've used are:
Users of any of these online databases should know that many are not always up to date, and may not include decisions from the most recent 6 - 12 months. Each human rights body's website is most likely to contain the most recent decisions.
The IJRC Online Resource Hub also includes tips for researching international human rights treaties and human rights conditions, and other research aids.
Some of these have been shared elsewhere in this conversation, but here is a round-up of my favourite resources to guide human rights defenders wanting to engage with the African Commission on Human and Peoples' Rights:
I'm sure that more exist and it would be great to hear about them (especially any for engaging with the African Court, for example)!
We were not able to get someone from Pan African Lawyers Union, an organisation that some of you may know, but I thought of sharing this link that shows the status of cases that they are working on both at the African Court of Human and People’s Rights and at the East African Court of Justice: http://lawyersofafrica.org/cases
Thanks, everyone, for these great resources! The list is very comprehensive, but I would just like to add a couple of very brief resources we developed at The Advocates for Human Rights:
Hope these resources are helpful!
The Advocates has observer status with the African Commission (as well as special consultative status with the UN). We are often asked why it is important and how it can be obtained. NGO observer status with the African Commission carries multiple benefits, including:
Resolution 33 of the African Commission sets forth the requisite qualifications and process for applying for observer status. The NGO must be working in the field of human rights and must be able to document their commitment and capability to work towards the goals of the African Charter on Human and Peoples’ Rights.
For information about the benefits of observer status with the African Commission on Human and Peoples’ Rights, visit http://www.pijip-impact.org/wp-content/uploads/2012/04/OBTAINING-AND-THE....
NGOs applying for observer status should submit a written application to the Secretariat of the African Commission:
31 Bijilo Annex Layout, Kombo North District
Western Region P.O. Box 673 Banjul
Tel: (220) 441 05 05, 441 05 06 / Fax: (220) 441 05 04 / E-mail: email@example.com
To apply for observer status, an NGO must submit a written application to the Secretariat of the Commission. The application and supporting documents must include:
Once an NGO has been granted observer status, it must work to “establish close relations of co-operation with the African Commission and to engage in regular consultations with it on all matters of common interest.” In addition, an NGO with observer status must provide activity reports to the commission every two years.
NGOs that work on children’s issues in Africa may also want to consider observer status with the African Committee of Experts on the Rights and Welfare of the Child (ACERWC).
In shifting the conversation to lessons learned and ways forward, in my view, there are many lessons to be learned from the Inter-American system that may be helpful to advocates in other regions where human rights courts are less well established or non-existent.
First, in my opinion, the Inter-American system has been most successful at helping countries consolidate democracy in the wake of military governments. There are many former members of the military in prison today in Latin America as a result of the consistent jurisprudence of the Inter-American Court requiring State Parties to investigate and prosecute human rights abuses, notwithstanding a seemingly never-ending line of legal arguments to the contrary, including amnesties and attempts to adjudicate these cases in military courts. This legacy is far from secure but from a global perspective it is nonetheless an amazing achievement.
We have found that this body of jurisprudence has been of great interest to constitutional jurists in other regions, especially Asia. In the absence of a regional human rights court in Asia, attorneys advocating for domestic legislation or jurisprudence recognizing an obligation to investigate and punish atrocities can point to the jurisprudence of the Inter-American system as an example of best practices.
On the other hand, within the Americas, the Court and Commission have had less success at securing compliance with decisions concerning economic and social rights. I therefore think it is important for advocates working on these issues to simultaneously pursue multiple avenues of redress, including strategic litigation in local courts and public advocacy campaigns. I would urge such an approach with any human rights issue, but especially with economic and social issues. As has been our experience on civil rights issues within the United States, social change on deep structural issues cannot be accomplished in the courts alone. Litigation must be supplemented by efforts to garner broader social support, including in particular among influential sectors such as academic institutions and professional organizations.
In many ways the most important work of the Inter-American system may be its efforts to provide protective measures, so-called precautionary measures, to human rights defenders. While I know of far too many defenders who have been killed notwithstanding the fact that they received protective measures, there are also examples of those who have received meaningful protection. At the same time, advocates should carefully analyze the local context before recommending a petition for precautionary measures. I know many advocates who feel far more comfortable relying upon independent groups, including accompaniment groups like Peace Brigades, than police escorts provided by the State. I would also urge advocates to consider grants available through a number of NGOs that provide for physical security measures, digital security training and software, medical expenses and humanitarian visas. In my view, brave human rights defenders operating under extremely dangerous circumstances too often give insufficient attention to these matters.
With regards to the Inter-American Commission’s thematic hearings, a great deal of resources are expended by human rights groups in the Americas to attend these hearings. These provide important opportunities to question State Parties about their practices and draw attention to issues that may never reach the court. However, unless pointed inquiries are put to the State Parties by civil society representatives, the Commission has a regrettable tendency to not demand that the State Parties respond directly to the concerns raised. Advocates visiting Washington DC to appear at Inter-American Commission hearings are also advised to take the opportunity to meet with representatives of the U.S. State Department and Congress who often have their own mechanisms for engaging directly with Latin American governments.
Finally, I’d like to share two practical points we have learned from people who have worked within the Inter-American system. First, the Court’s search engine is not very good. The best way to search for the Court’s decisions is in Spanish at https://www.google.co.cr/ As the Court is located in Costa Rica, this seems to be the most effective search engine.
Second, within the Inter-American system, the Court will examine whether a petitioner has exhausted domestic remedies at the admissions phase. It usually takes several years to get to this stage. Therefore, if an advocate has attempted to exhaust domestic remedies and has good reason to think that further efforts will be fruitless, they should consider filing a petition with the Inter-American Commission while simultaneously continuing to exhaust domestic remedies. The classic example is a human rights defender who has been the subject of threats and whose request for an investigation by authorities has not been answered. I would consider filing a petition in such a case after one year, especially for someone who has already received precautionary measures, as such individuals are given prioritized treatment under the new rules.
Thank you for sharing these insights and tips, Brittany.
I would just add that the Inter-American Court has recently launched a new search tool on its website, which is separate and distinct from its own searchable database. The new databse is the "Buscador Juridico de Derechos Humanos" and is managed through the Supreme Court of Mexico. The basic search function (accessible here: https://www.buscatdh.bjdh.org.mx/inicio.aspx) contains Spanish and English language documents, but the advanced search (here: http://www.bjdh.org.mx/BJDH/) is only in Spanish. Both are accessible from the Inter-American Court's website. IJRC's manual on the Inter-American system also lists all Inter-American Court judgments by some general themes (e.g., extrajudicial execution or freedom of association). It is available in English, Spanish, Portuguese and Haitian Creole here: http://www.ijrcenter.org/regional/inter-american-system/
Also, to follow up on what you mentioned about prioritized treatment of petitions, the new Rules of Procedure include the following scenarios in which the Commission may expedite a petition's processing:
a. when the passage of time would deprive the petition of its effectiveness, in particular:
i. when the alleged victim is an older person or a child;
ii. when the alleged victim is terminally ill;
iii. when it is alleged that the death penalty could be applied to the presumed victim; or
iv. when the object of the petition is connected to a precautionary or provisional measure in effect;
b. when the alleged victims are persons deprived of liberty;
c. when the State formally expresses its intention to enter into a friendly settlement process in the matter; or
d. when any of the following circumstances are present:
i. the decision could have the effect of repairing serious structural situations that would have an impact in the enjoyment of human rights; or
ii. the decision could promote changes in legislation or state practices and avoid the reception of multiple petitions on the same matter.
Brittany raises an important point about safety and security of human rights defenders. Since we're sharing resources today, I'll share The Advocates for Human Rights' Resources for Human Rights Defenders, a short handout we created in response to people who came to us with concerns that friends or family members working on human rights "back home" were in danger. And Chapter 11 of our Paving Pathways toolkit, on capacity-building, has a section on safety and security (starting on page 314).
I'd also be interested to hear about the types of precautionary measures that have been effective, and the types that have been ineffective. I'm sure efficacy varies by context, but are there some examples of creative precautionary measures that seem to have worked?
I'll also add to Brittany's suggestion about meeting with U.S. State Department officials while in Washington that advocates may want to consider speaking with those officials about any upcoming Universal Periodic Review of their country. Asking for a specific UPR recommendation on a topic of interest is a very concrete "ask" that State Department officials may be in a position to make happen. Following up with the U.S. embassy back home can be another way to keep the pressure on for a strong UPR intervention. (Sorry for this deviation from our topic this week!)
On the topic of exhaustion of domestic remedies in the Inter-American system, advocates should note that, during its initial evaluation the Commission will look at whether this requirement has been met (meaning, either: the remedies available within the country have been pursued as far as possible and did not lead to reparation or redress; or, remedies within the country are unavailable, unduly delayed or insufficient (e.g., due process guarantees are not observed)). The Executive Secretariat of the Commission completes the initial evaluation before the petition is sent to the State and before the Commission makes a decision on admissibility.
The time period between when a petition is submitted and the initial evaluation is conducted may be several years, or it may be significantly shorter - such as if the petition falls into one of the categories for expedited processing mentioned earlier, or if the petition clearly fails to meet the requirements of Article 28 of the Rules of Procedure. If a petitioner believes that domestic remedies are or will be unavailable, unduly delayed or insufficient, the petitioner must clearly explain this in the petition - otherwise, the petition may be rejected even at the initial stage for failure to exhaust domestic remedies. And, the petition must be submitted either within six months of when the petitioner was notified of the final domestic decision that put an end to the available domestic remedies, or within a "reasonable time" if the petitioner argues that domestic remedies are unavailable, delayed or insufficient.
These kinds of requirements vary among the regional systems, however. The European Court of Human Rights, for example, has recently instituted stricter requirements for applications.The European Court may also reduce the time limit to four months in the future. More information here: http://www.ijrcenter.org/2013/12/16/european-court-of-human-rights-to-be... And see the European Court's video on admissibility below.
A few quick responses to Brittany's post:
At IACHR thematic hearings, it's advisable to make specific recommendations and requests, so that the IACHR can simply transmit your pointed questions to the State. Also, as with all international advocacy, be aware -- as Brittany alluded to -- that implementation outcomes don't happen in a vacuum; they require a larger strategy beyond just a one-hour hearing.
IA Court and Compliance
Compliance has come up today and in previous questions. The real problem with implementation is States' political will to adhere to their binding international obligations.
The OAS General Assembly falls well short of adequately monitoring compliance with IA Court judgments, so - as I mentioned eaerlier - the Inter-American Court has a supervision stage under Art. 68 of the American Convention. I'll highlight that advocates should think of the supervision of compliance stage as another stage of strategic litigation (which it is), which should be pursued as part of a broader strategy. In this phase, the Court monitors compliance, designating each measures of reparations (by operative paragraph) as non-compliance,partial compliance, or full compliance. It can issue Resolutions during this procedural stage and it can hold hearings - public or private - on compliance.
The overall panorama, no matter what methodology is used, is one of partial compliance.
Litigating IA Court compliance requires the same kind of integral advocacy as previous stages of litigation, except that this time you have a judgment in your hands with a set of binding international obligations given to the State by the highest regional body of jurisdiction. In a perfect world, we would just say "pacta sunt servanda" and achieve automatic implementation by States, but in the world we live in it takes a sustained, concerted effort that dovetails into broader advocacy.
Which aspect of implementation advocacy is the most decisive? To answer, I'll share this final reflection on post-judgment implementation efforts:
What is the secret of the straw that broke the camel's back? The thousand straws underneath it.
Thank you, Charles. Your insights provide lots of food for thought, and I really like the "thousand straws" analogy for multi-faceted, persistent advocacy.
The problem of lack of political will to implement international human rights obligations is one that hinders advocates' work in so many places. It brings to mind for me several instances when organizations have successfully used human rights advocacy to obtain favorable decisions at the regional level, but continue to face an uphill battle in securing full State implementation, in environments that are often hostile to human rights defenders. The governments may have complied with some aspects of an Inter-American Court judgment, such as by providing some monetary compensation to the victims, but political conditions, weaknesses in the judiciary and law enforcement, and a climate of impunity could still make it very difficult to secure real reform or accountability.
Among others, two organizations come to mind. They have been working for many years to address serious human rights violations of the 1980s: 1) COFAVIC, a Venezuelan NGO largely focused on addressing extrajudicial killings, including those of El Caracazo in 1989, and 2) CALDH, a Guatemalan organization working to secure accountability for the genocide, disappearances and other serious human rights violations committed during the internal armed conflict. Both organizations have used a range of strategies, including public education, hearings and complaints before the Inter-American system, domestic litigation, close cooperation with the affected individuals and communities, and negotiation with the government.
Civil society's efforts in Guatemala provide some unique lessons because of the diverse tools that advocates have used over the decades, including:
In terms of domestic implementation, these efforts have yielded several prosecutions, including the prosecution of former head of State, Efrain Rios Montt (scheduled to be retried in 2015). Moreover, by documenting the violations, supporting victims in seeking justice, and demonstrating the State's international responsibility, Guatemalan advocates have built a community of people committed to reform, allowed victims' voices to be heard around the world, helped change the political environment and strenghten institutional capacity, and made it very difficult for the human rights violations of the past to be ignored.
Maybe another important lesson in human rights advocacy is that "success" can take different forms, and may benefit different groups - including future generations - in varied ways.
And, because it's Friday, below is a video of advocates explaining the value of the Inter-American system to their own work in the Americas (in Spanish).
I'd love to hear advice about amicus briefing with the regional systems. My understanding is that all three of the major systems accept amicus briefs. Are there any best practices or examples of good amicus briefs? What topics seem to be most useful? I spoke with someone at the African Court who said that amicus briefs that really focus on the jurisprudence of the other regional systems would be particularly helpful. Are there other topics or areas of focus that seem to be generally helpful?
How (if at all) do litigants solicit or encourage amicus briefs? The Advocates for Human Rights has had some limited experience with submitting amicus briefs, and we've been in the position of soliciting amicus briefs to support our own domestic litigation. We could potentially leverage some of our fantastic pro bono partners to do more work in this area in the regional systems, but how can we learn more about these opportunities?
Re amicus briefs before the Inter-American Court:
Rules of Procedure, Article 44. Arguments of Amicus Curiae
1. Any person or institution seeking to act as amicus curiae may submit a brief to the Tribunal, together with its annexes, by any of the means established in Article 28(1) of these Rules of Procedure, in the working language of the case and bearing the names and signatures of its authors.
2. If the amicus curiae brief is submitted by electronic means and is not signed, or if the brief is submitted without its annexes, the original and supporting documentation must be received by the Tribunal within 7 days of its transmission. If the brief is submitted out of time or is submitted without the required documentation, it shall be archived without further processing.
3.Amicus curiae briefs may be submitted at any time during contentious proceedings for up to 15 days following the public hearing. If the Court does not hold a public hearing, amicus brief must be submitted with
in 15 days following the Order setting deadlines for the submission of final arguments. Following consultation with the President, the amicus curiae brief and its annexes shall be immediately transmitted to the parties, for their information.
4.Amicus curiae briefs may be submitted during proceedings for monitoring compliance of judgments and those regarding provisional measures
For more information on how to access the Inter-American System, you can access CEJIL's publications here. They include:
I echo Lisa in saying that the Court's jurisprudence databases are useful. A project similar to the European System's HUDOCS database is in the works for the Inter-American System.
In response to a few points raised about admissibility issues:
As Lisa mentioned, the Inter-American Commission is the body that first decides on Admissibility, and its general practice is to consider admissibility separately from the merits. It is true that with the IACHR's current backlog it can take years for a case to pass from Registry to Admissibility, but in most cases I would disagree with Brittany's suggestion to wait for a year to file a petition, for two reasons:
The criteria adopted in Article 29 of the IACHR Rules of Procedure were already a part of the Commission's practices prior to the 2013 reforms to the Rules. For more about the reforms, the context in which they were adopted, and criteria for their interpretation, please refer to CEJIL's Position Paper: https://cejil.org/sites/default/files/Documento%20de%20Coyuntura%20N%C2%.... (English translation forthcoming)
Under its current Rules of Procedure, the Inter-American Court has a general practice (to which there are some exceptions) of examining Preliminary Objections (incl. admissibility requirements) together with Merits, Reparations and Costs. The IACHR's admissibility decision generally deserves deference from the Court unless the party raising the preliminary objection alleges the admissibility decision was based on erroneous information or affects its right to defense. See Corte IDH. Caso Vélez Loor Vs. Panamá. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 23 de noviembre de 2010, Serie C No. 218, párr. 19; Corte IDH. Velásquez Rodríguez Vs. Honduras. Excepciones Preliminares. Sentencia de 26 de junio de 1987. Serie C No. 1, párr. 34.
Even then, a preliminary objection re exhaustion before the Court follows three important rules: (i) the State may tacitly or expressly renounce its ability to allege non-exhaustion of domestic remedies if it doesn't opportunely raise the objection; (ii) to be opportune, the preliminary objection must be raised in the first stages of proceedings before the IACHR, and if not it is tacitly renounced, and (iii) the State must state which domestic remedies should be exhausted, and explain their effectiveness. See Corte IDH. Velásquez Rodríguez Vs. Honduras. Excepciones Preliminares. Sentencia de 26 de junio de 1987. Serie C No. 1, párr. 88.
Thank you so much for participating in this conversation on engaging regional human rights mechanisms! It has been an informative exchange and I really appreciate the time and thought you put into each of your comments. I especially want to thank Amy, Charles, Jennifer, Brittany, Rachel, Joseph and Yves for leading this discussion, and Lisa for partnering with me on this discussion and making it a success!
I hope you found it helpful to: reflect on the courts and commissions available to advocates and how they work, exchange stories and examples of engaging these mechanisms, and to share your challenges, lessons-learned and advice. It was a thought-provoking exchange and I greatly appreciate your honesty and authenticity. I hope you all are taking away new ideas, resources, reflections and allies!
We will begin the process of writing a summary of the comments posted here. It will most likely take a few weeks and once we're finished, we'll post the summary on the front page of this conversation. For those of you that added comments, I'll notify you by email when the summary is posted.
The conversation leaders committed to participate in this discussion last week. Although that commitment has come to end, you can still add comments until the summary is posted. So please feel free to continue to add your thoughts, reflections, resources and stories!
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This discussion was the first of our conversation series on Seeking Justice. I hope to see you in our upcoming discussions on this topic!
Kristin Antin - New Tactics Online Community Builder