The recent collapse of the case against the former president of Ivory Coast, Laurent Gbagbo, for crimes committed during the disputed presidential election of 2010, is yet another major headache for the International Criminal Court (ICC). The court found that the prosecution had failed to establish a strong enough link between Gbagbo and the violence which led to the deaths of around 3,000 people. Journalist Celeste Hicks reviews a recent publication that provides alternative routes towards justice.
Originally held up as an example that the ICC is capable of handling the prosecution of ‘big fish’, former president Gbagbo’s acquittal may now serve to reaffirm the court’s reputation as being an institution that can only prosecute rebels.
It begs the question: if the ICC continues to struggle, what can be done to ensure that perpetrators of human rights abuses will be held accountable for their actions?
Fortunately for those looking for answers, a new book by Helen Duffy, Professor of International Humanitarian Law and Human Rights at the University of Leiden, gives us some useful leads. In ‘Strategic Human Rights Litigation (SHRL); Understanding and Maximising Impact’, Duffy explores the use of litigation which has aims over and above the needs of individual victims, in other words ‘public interest’ cases. The aims could be, for example, to trigger an enforcement of national law, to strengthen the judiciary, or to change public policy.
At first, this may seem a strange focus, given that it suggests the needs of victims in particular cases may not take centre stage.
However, Duffy’s book provides an excellent introduction to the potential forms this sort of litigation can take. And the results of some of these interventions show that impressive results are possible.
For example, Duffy provides an overview of the ‘Mani’ case in Niger, where a young woman was able to challenge her birth status as a slave in the West African regional ECOWAS court. The ECOWAS court eventually found that the Nigerien government was in violation of its international obligations to protect her from slavery and awarded her compensation. In this example, as well as the rather immediate aim of securing the young lady’s freedom as she had been pursued for bigamy by her former ‘owner’, the case was able to shine a light on the unacknowledged ongoing practice of slavery in Niger, despite national laws prohibiting it.
The importance of timing
Duffy discusses in detail whether there is such a thing as “a right case at a right time”. She suggests that there is “no blueprint”, rather cases may emerge from a particular context and may be driven forward according to the needs of a situation, or indeed the character of those drawing up the litigation. She warns against the dangers of not putting victims at the centre of cases, and of unrealistically raising expectations.
Another example of strategic litigation which performs well on these criteria is the Hissène Habré trial. The former Chadian dictator was jailed for life in 2017 after an internationalised trial in the existing Senegalese justice system. Although it took 25 years for the case to reach trial, largely due to the need to wait for political conditions to become favourable to a prosecution, it was in fact very effective. The case took just 10 months to deliver a verdict and cost around 8 million EUR. Contrast that to the ICC which has an annual operating budget of around 140 million EUR. The Habré trial also successfully represented a delicate balance between the needs of the individual victims and the litigators who wanted to demonstrate that even former presidents can be held to account.
Although Duffy’s book does advise caution in terms of how far SHRL can deliver, it is still worth noting the limitations of individual cases to effect social and political change. The Habré case was certainly a success in that it achieved a verdict, but the wider impacts are hard to see. A number of his co-accused were never brought to trial, and several are thought to still live at liberty in Chad under President Idriss Deby Itno today. This undermines the argument that strategic litigation can transform national human rights landscapes. In this book, I would have liked to see more on how to measure the impact of cases such as Mani and Habré on current governments’ approach to protecting human rights.
As the ICC’s problems seem to multiply, Duffy’s book remains a vital and clearly written account of what other strategies lay out there for human rights defenders. If the world court cannot deliver, perhaps this “innovative building and borrowing” as Phil Clark has described it is the way things will proceed from now on.