Ferstmann

Carla Ferstman on securing rights on a global scale - the challenge for lawyers: ‘The role of lawyers (and legal NGOs) in the process of securing International Human Rights norms’

Carla Ferstman, addressing the Solicitors International Human Rights Group, spoke about the new opportunities and challenges for lawyers working to secure international human rights at this month's Solicitor's International Human Rights Group speaker meeting.

Ms Ferstman is Director of REDRESS, an NGO that works with victims of torture and their families to help rebuild their lives and livelihoods. Part of this process is the search for justice and reparations. Yet the nature of a serious human rights violation such as torture makes this particularly difficult to achieve, throwing up specific challenges in the pursuit of justice and effective remedies. Lawyers and Legal NGOs however can play an effective role in overcoming these obstacles.

One distinguishing factor of human rights violations is the possible involvement of the State in perpetrating the crime. This, Ms Ferstman stated, makes such violations particularly heinous as crimes, as governments are the bodies, which citizens expect to turn to for assistance. This framework of a state-sanctioned crime makes the pursuit of justice for its victims particularly complex. The government body that the victim would normally report a crime to, for example, may have been involved in the human rights violation in question. If, alternatively, a victim tries to bring a civil action, this may not avoid the conflict of interests as countries with prevalent human rights violations often also have problems relating to the independence of the judiciary. Even where countries have an independent human rights commission, there is usually a significant backlog. There is a gap between procedure and practice: although theoretically there are methods for victims of human rights violations to seek redress, there are often many procedural hurdles impeding access to remedies. Harder to overcome, however, is the lack of political will to tackle human rights abuses and a lack of knowledge of how to respond to such abuses.

In fact, there is no single 'remedy' that can make it all go away for the victims and their families. The UN established in late 2005 that victims have a right to reparation, and there are various types of reparation, which reflects the complexity of recovering from serious human rights violations. These remedies include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Another issue with reparations which lawyers and legal NGOs need to accommodate can arise when they are representing groups of survivors, whose needs can vary greatly. Moreover, the problems their clients are experiencing may be psychological or medical as well as legal. In these circumstances, the lawyer has to 'wear a number of different hats'; if they only respond to the legal problems, they may be doing their clients a disservice. Before any reparation can be achieved, countries must acknowledge that the violation has occurred in the first place. This may force countries to acknowledge state involvement. Achieving justice on a state level in this situation can prove problematic.

Where can victims turn when domestic law is unlikely to provide effective remedies? It may be possible to seek a regional or international remedy, if relevant courts are available. But not all countries will have signed agreements to provide a regional human rights court or other international treaties safeguarding human rights. The establishment of the International Criminal Court (ICC) has, in Ms Ferstman's view, provided new opportunities to seek remedies for victims of serious human rights violations.

REDRESS is actively involved with the ICC, particularly in terms of supporting the victims. The Statute of the ICC, in contrast to traditional criminal courts, specifically acknowledges victims' right to participate in the proceedings, not only as prosecution witnesses but as individuals with an interest in the outcome. Obviously this right can only be exercised to the extent that it does not impinge on the rights of the accused. Nevertheless, the ICC marks 'one of the most significant developments' in the struggle of human rights violation victims to achieve justice. Victims' rights are worked into the system by allowing joint counsel, so that victims have their own representation, and permitting victims to make an oral deposition.

Litigation at the ICC differs from other human rights litigation undertaken by NGOs and legal advocates. As a criminal court, the ICC considers the responsibility of the individuals who come before it rather than that of any state. Likewise, though the victims are part of the case the emphasis is placed on the charges against the accused. There are tensions between the traditional criminal justice approach and the more victims oriented approach. The challenge for NGOs and lawyers is to resolve these tensions and promote the rights of victims. This can be a complex task: often the legal representatives for victims are representing a large number of people, who may be dispersed or geographically distant. This makes the lawyer's crucial task of communication very difficult. Situations where there is a large group of victims also discourage the Office of the Prosecutor from supporting all their needs and views, as it may not be in the Prosecutor's interest to have divergent opinions.

Harder to balance are the tensions between the victim's right to protection and participation with the defence's right to know the case against them. In situations where a conflict is ongoing, victims may only wish to testify confidentially; however, this evidence must be disclosed if it is to be submitted as evidence. If victims are to be allowed to exercise their right to participate in the proceedings, adequate protection for them must be guaranteed. The challenge for NGOs and lawyers is to take the illusory rights of victims - to participate, to be protected, to achieve justice and reparation - and help realise them.

Quotes:

‘The government is the body to which individuals should turn to for assistance’

On reparations: 'you are restoring dignity to survivors’.

‘Obtain a remedy, what you have done is restore the dignity of the individual and communities involved’.

‘There is a lack of will to tackle human rights abuses in a systematic way’.

'In terms of safeguarding human rights, there is a gap between law and practice in many countries'

On the ICC: 'One of the most significant developments for victims' rights.'

'The issue of the threat to victims can be used as a way of avoiding bringing prosecutions'

On negative protection - restricting the number of victims who can participate at the ICC: 'This approach ends up narrowing the involvement of those most affected.'

On lawyers and victims' rights: 'The role of lawyers is innovative and necessary.'