Strategic litigation against torture: Why domestic courts matter

Abstract

Strategic human rights litigation is often associated with filing cases before international courts and treaty bodies. While international litigation is an important avenue of seeking social change and setting new standards of rights protection, it has its limitations and needs to be combined with domestic litigation to maximize the impact of legal action for seeking accountability and reparations for torture. This article argues that significant advances in protecting the rights of victims of torture and similar crimes can be achieved through domestic courts even in countries with limited respect for the rule of law. This article is not a review of global practice, it is based on lessons and reflections from personal experience of over 25 years of strategic litigation and advocacy against torture; learnings from the work of partner organizations and lawyers from around the world, as well as the study on the impacts of strategic litigation on torture in custody published by the Open Society Justice Initiative. The article discusses selected examples of strategic human rights litigation against torture before domestic courts in different countries. It argues that domestic courts can be better placed than their international counterparts to address some of the elements of protection of victims’ rights. It does not cover universal jurisdiction cases but rather focuses on how domestic courts can be used to address torture that takes place in the same country. It concludes with lessons learned from these experiences.