Assessing Strategic Litigation Impact on Human Rights
DUFFY, Helen. Strategic Human Rights Litigation: Understanding and Maximising Impact. Oxford: HART PUBLISHING, 2018.
Judgment day, verdict is given. Victory! Justice! "The end point is the familiar photo of triumphant lawyers and clients on the steps of the court after judgment is rendered--the proverbial (and sometimes literal) champagne moment celebrating litigation 'success'" (DUFFY, 2018). In Strategic Human Rights Litigation, released in 2018, Hellen Duffy argues against the cliche of legal victory, and the illusion that winning in court is the ultimate solution to solve human rights violations. Taking advantage of her international professional experience as a practitioner on issues ranging from modern slavery to transitional justice and the war on terror, the author analyzes the field of strategic human rights litigation by exposing its limitations and potential, focusing on developing a framework to better plan and assess impact.
In order to do that, Duffy replaces the binary "victory x defeat" (1) as the main possible outcome of a case by suggesting that "modern lenses" should be used to analyze and broaden the understanding of impact: high definition lenses to identify multiple levels of impact, from victim's reparation to legal impact and extensive societal changes; wide-angle lenses to understand context and the magnitude of clusters of similar cases; a time-lapser to perceive impact over the years; and, finally, the need to consider multiple perspectives from different actors in the litigation process, such as victims, lawyers and NGOs.
Duffy acknowledges that each case has its own characteristics and avoids to fully standardize and oversimplify the framework for impact assessment. In an area in which the debate between differences in justiciability of civil and political rights and economic, social and cultural rights is still vivid, the author gives less attention to the type of right being litigated to focus on dissecting each situation by analyzing specific contexts, goals and outcomes. Perhaps, by adapting the framework to each situation and avoiding the use of a rigid pattern of identified levels of impact, the author might limit the replication of the framework by others, frustrating those more eager to find in the book a preconceived formula to effective litigation.
However, the great variety in the facts and rights of the cases allows the author to make analogies, to find common ground between different situations and to underline strategies that can be used in more than one occasion. For instance, the importance of reframing violations to strengthen impact is identified in most of the case studies, such as the development of enforced disappearance in Argentina, the recognition of apartheid in systematic violations against the Palestinians and framing egregious violations against indigenous and rural communities in Guatemala as genocide.
After presenting her framework for assessing the complexities of impact, Duffy identifies its multiple levels, from victim and legal impact, to impact on mobilization and empowerment. The author instigates the reader by placing these guidelines before...