Strategic litigation against torture: Why domestic courts matter

Abstract

Purpose: Strategic human rights litigation is often associated with filing cases before international and regional courts and treaty bodies. This article examines ways in which 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. Methodology: This article does not cover universal jurisdiction or transnational cases, but rather focuses on how domestic courts can be used to address torture that takes place in the same country. It is not a review of global practice; rather, it is based on observations drawn from the author’s personal experience of over 25 years of strategic litigation and advocacy against torture; lessons learned from the work of partner organizations and lawyers from around the world; and the results of three research projects commissioned by the Open Society Justice Initiative (OSJI): one on the impact of strategic litigation on torture in custody in Argentina, Kenya, and Turkey (OSJI, 2017); another on how domestic courts in Latin America handle repa-rations for torture and similar human rights violations (Garcia Garcia, Fierro Ferráez, & Lisitsyna, 2019); and a third on strategic litigation against torture in Asia (Bokhari, 2020). Conclusion: While acknowledging continued challenges, the author demonstrates that do- mestic courts are often better placed than their international counterparts to address several aspects of human rights litigation and protection of victims’ rights and in some cir-cumstances can have broader impact.