Access to justice

The measures taken by States in response to the pandemic declared on earlier this year on March 11th have had a significant impact on access to justice for victims of human rights violations. The judicial system in some countries has come to a complete standstill as a result of the necessary public health measures put in place to counter the pandemic, causing significant delays in the processing of cases. On the other hand, human rights violations, whether pre-existing or triggered by lockdown measures, have gained momentum over the past six months. Given that access to the justice system is, by definition, fundamental to the realization of all human rights, communities in situations of vulnerability have, without a doubt, suffered firsthand from the situation.

With this Special Report, Lawyers Without Borders Canada (LWBC) aims to highlight the innovative ways in which LWBC partners all around the world have managed to maintain support for victims and continued to fight for effective justice, despite the pandemic.

In Guatemala and Colombia, awareness-raising campaigns have been set up to inform women and girls of their rights and of the resources and options at their disposal. In Honduras, advocacy activities and legal actions have been undertaken in regard to discriminatory or abusive measures. In the Northern Triangle of Central America, we’ve been working with justice systems to counter the effects of the pandemic on human trafficking. In Haiti, we supported the Office de protection du citoyen (equivalent to a Human Rights Ombudsman or Commission) in documenting and reporting human rights violations resulting from the pandemic, including against women and persons in situations of vulnerability. In Mali, we’ve been on the ground with the Truth, Justice and Reconciliation Commission, helping it pursue its mandate to build peace despite COVID-19.

No crisis can take away the fundamental nature of human rights, which is why LWBC strives on a daily basis to continue to uphold the law.

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Strategic litigation

Strategic litigation in the field of human rights is one of LWBC’s main areas of focus. It involves supporting human rights defenders who help bring emblematic cases of human rights violations before national, regional, and international courts in order to enforce the rights of people in situations of vulnerability and establish positive legal precedents for human rights.

Challenging the constitutionality of laws and regulations, calling into question discriminatory governmental policies, bringing criminal or civil proceedings for war crimes, crimes against humanity or other human rights violations such as torture, extrajudicial killings or sexual and gender-based violence are all examples of strategic litigation cases.

When is litigation “strategic”?

Strategic litigation cases are selected based on criteria such as the nature of the alleged human rights violations, the identity or status of the perpetrators of the alleged crimes, the identity or status of the victims, the extent and seriousness of the violations, or the structural impact that the litigation process could potentially generate.

What purpose does strategic litigation serve?

We use the term “strategic” because this type of litigation aims to bring social impact using the law and by challenging the existing judicial system. Strategic litigation also aims to encourage change with regard to social, institutional, and cultural attitudes for enforcing human rights. For example, in strengthening the capacities of victims and their legal representatives to obtain recognition by the courts of the responsibility of former dictators in genocides, war crimes, or crimes against humanity, we contribute to making history and counteracting revisionism, fighting impunity among high officials, and bringing about major changes, including within the judicial system, in the way authorities operate, and within society. LWBC has been carrying out such capacity-building activities in Haiti and Guatemala.

Transitional justice

Transitional justice is a series of mechanisms that aim to restore justice in a State that has suffered a major crisis and serious human rights violations. The crisis might have stemmed from armed conflict, a popular uprising, a period of political oppression, or mass violations of human rights such as genocide or crimes against humanity.

Why do we describe it as “transitional”?

It is called “transitional” justice because it is usually implemented in a context of transition, from instability to long-term peace. From a practical perspective, transitional justice involves the implementation of a number of innovative mechanisms, both judicial and non-judicial, which act alongside conventional institutions. LWBC focuses its interventions around four main areas:

• Fighting for the right to the truth;
• Bringing high officials to justice;
• Enforcing victims’ right to reparation for harm and suffering;
• Establishing guarantees of non-recurrence of human rights violations.

What purpose does transitional justice serve?

• Officially recognizing that victims’ rights have been violated;
• Seeking out the truth and preserving collective memory;
• Obtaining justice for victims and remedying harm suffered;
• Prosecuting crimes committed and punishing perpetrators;
• Preventing further crimes from being committed;
• Contributing to reconciliation, peace, peaceful coexistence, and social cohesion;
• Helping society get back on the path to development;
• Empowering people in a situation of vulnerability and victims, including women, to realize their human rights.

What about victims?

Victims are always at the heart of transitional justice policies. Their aspirations with regard to justice, reparations, truth, and reform must be taken into account. Victims’ needs and priorities must be taken into account at all stages of the process—from the design phase of a transitional justice agenda right up to its implementation.

The success of these transitional justice mechanisms depends, above all, on the victims’ active participation in the process. Victims can, for example:

• Set up spaces for communication with their community;
• Address their claims and recommendations to the government directly;
• Take part in truth and reconciliation commission hearings;
• Suggest legislative and institutional reforms during public consultations;
• Become involved in judicial proceedings by joining as a civil party to the case.

Legal aid and legal assistance

Legal aid is a system whereby the services of qualified professionals are made available to victims who can obtain guidance, information, advice and representation both prior to judicial proceedings and once before the jurisdiction of the courts. The aim in developing the capacity of people in a situation of vulnerability to take action is to allow them to gain access to frontline legal services, provided free of charge by local partners receiving support from LWBC.

What are legal aid and legal assistance?

Legal aid enables litigants to gain access to justice at a local level. As such, they receive support in resolving civil, criminal, or administrative matters. For example, legal aid can be provided in the form of legal counselling, guidance, and support for women who want to obtain a fair share of their family inheritance, file a complaint for domestic violence, put an end to discriminatory practices at work, etc. Legal aid can then progress towards judicial assistance when people in a situation of vulnerability and victims of human rights violations decide to seek justice before local or national courts or administrative tribunals. For example, legal assistance can help a rape victim join legal proceedings against her offender as a civil party. It can also contribute to releasing people who have been wrongfully detained, i.e. without motive or without sentence.

What is the purpose of legal aid and legal assistance?

Ensuring access to adequate legal aid and legal assistance services in our countries of intervention is sometimes difficult for a number of reasons, including: general weakness in the judicial system, absence of governmental legal aid services, lack of affordability, etc. In order for people in a situation of vulnerability, including women and girls, to stand a real chance of gaining access to justice and reparations, they need to have access to appropriate, diverse, and robust legal services at a local level. Our civil society partners make this possible, by supporting them in obtaining effective access to justice in civil, criminal and administrative matters, and providing support through a holistic approach that takes physical and mental health care into consideration.

Generational handover

In order to position the law as a key instrument for people in a situation of vulnerability and victims of human rights violations to use in order to take ownership of their rights and exercise them for a chance to change their lives, it is essential that they have access to lawyers who are not only qualified from a technical point of view, but are also committed to advancing human rights and fighting impunity. As such, LWBC implements projects that aim to shape the next generation of human rights lawyers and develop the capacities of young legal scholars, so they can defend human rights throughout their future career.

How will training the next generation change things?

Given the context in which they intervene—political instability, fragile institutions—the lawyers who represent victims in civil proceedings on matters involving human rights violations often stand as key pillars for the rule of law, and act as obstacles to injustice and impunity. Their direct intervention in these matters and interactions with legal stakeholders makes a significant difference.

LWBC’s firm belief in this approach provides organizations with the necessary drive to empower these lawyers not only to contribute to accelerating prosecution efforts through significant legal and judicial accomplishments (and modernizing the law in so doing), but also to advance the effective operation of the judicial system as the ultimate guardian of the rule of law.

How do you develop this new generation?

To help develop this new generation of human rights defenders, LWBC supports partners in providing:

• Professional training and mentoring programs that meet the experience and needs of young legal scholars, especially women legal scholars;
• Internships for local lawyers;
• Scholarships;
• Moot court competitions;
• Partner and mentor programs;
• Employability opportunities.

What about in Canada?

Shaping the next generation doesn’t only involve supporting future human rights defenders elsewhere in the world. It also involves encouraging this new generation in Canada. In this sense, LWBC acts as a laboratory for the advancement of human rights, training a contingent of new practitioners within the legal community in Canada who are committed to assisting people in a situation of vulnerability. During their assignment, LWBC volunteers are themselves under the supervision of experienced human rights defenders.

The experience inspires our volunteers and nurtures their commitment to the human rights cause so they can, once back in Canada, become actors of change themselves by integrating a strong human rights component into their work.

Human rights advocacy

Advocacy is generally defined as a series of actions and activities that aim to promote an opinion, a cause or the status of a group of people in order to influence and positively change public policy and public opinion. The fight for enforcing human rights and combatting impunity and corruption either involves advocating in favour of legislative, political, and institutional reforms that comply with international human rights standards, or fighting against norms, practices, or measures that are discriminatory or breach these international standards.

What purpose does advocacy serve?

Human rights advocacy focuses on civic engagement, including the participation of women, at institutional or community level. As such, the aim of human rights advocacy is to make sure voices of underprivileged segments of the population are heard and are taken into account by decision makers.

High-level advocacy activities aim to tackle impunity and corruption, and the root causes of inequality, injustice, and poverty. Given its power to effect change, advocacy provides a means to address deeply embedded prejudices and discriminatory practices against women and people in a situation of vulnerability.

What does advocacy look like in practice?

In order to act as a driving force among State authorities and encourage them to take adequate measures to uphold the right to truth, justice, and reparation, civil society organizations that defend victims need to be able to support their arguments and present them to the State and before relevant regional and international bodies in an effective way. To do that, they need to have access to appropriate tools. What makes LWBC’s advocacy work so distinctive is the fact that it focuses on the legal basis and on the standards that govern dialogue between civil society and the State, between international bodies and States, and between States.

Advocacy can involve various activities, including drafting recommendations on legislative proposals to be submitted to public authorities, analyzing case law to leverage the capacities of our partners, producing legal documentation to serve as a basis for civil society actors in implementing awareness campaigns, etc.

Regional human rights bodies

Sometimes, helping victims of serious human rights violations bring a case before national jurisdictions fails to yield satisfactory results. Similarly, the support we provide to our partners in advocating against discriminatory legislation or unlawful practices is also sometimes not enough. Sometimes, people in a situation of vulnerability find themselves with no course of action available to them within their country. In such cases, they often have the option to turn to regional or international human rights bodies.

What exactly are regional human rights bodies?

Regional human rights bodies like those of the inter-American human rights system and the African human rights system were designed, among other things, to give victims access to justice when they have nowhere to turn to within their own State.