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The Optics of Human Rights: Race, Power and the Problem with Global Strategic Litigation



By: Esha Meher* |




Philip C. Jessup, Nelson Mandela and Susan Ferrell form formidable impressions in the minds and careers of many young law students in the world. Looking through the rose-tinted glasses of moot courts and conferences, the world of international litigation and global human rights seem supremely enticing.


When I graduated from GNLU in 2017, I was keen on making a legal human rights career overseas.[1] The world, which is plagued by wars, refugee crises and transnational crimes, was sure to need an enthusiastic mind. It would be difficult, but I would find a way. Armed with a copy of the Universal Declaration of Human Rights, I set out to put my foot in the door of the world of Human Rights, however I thought it was! From research desks to think tanks, from strategic litigation in the middle east to a public prosecutor’s office in a remote pacific island. I traipsed across the world donning the hat of a human rights defender, struggling to find my exact corner in this vast field. Much like my peers in law school, I was a curious mind with a lot of questions. Is the ICJ going to hear the case against Myanmar? Is South China a strictly territorial dispute? Will the Ad hoc tribunal for South Sudan ever come into existence? In asking all of this, I forgot to ask one crucial question. What exactly is the job of an ‘international’ lawyer? It would be foolhardy to assume that recent graduates have a realistic possibility of waltzing into the halls of the International Court of Justice in their caps and gowns. Given the limited number of disputes that present themselves in international forums, coupled with their political connotations, it is clear that the burden of litigation lies elsewhere. This ‘elsewhere’ was a world not many spoke about, but one, which was gaining traction by the day: the world of transnational strategic litigation. One, where legal organisations or NGOs brought claims before judicial forums in countries all over the world. Sometimes urging compliance with local laws and sometimes with international law. But then again, I am often reminded that co-incidentally enough, the other question that I had not asked that day, was along the definitional lines of transnational litigation.



Advocating beyond borders:


The word of the decade for me is ‘transnational’. One that would haunt my nightmares for months as I sat up working on prison laws of Egypt only to find out that the state had declared any association with a foreign legal entity not only void but also criminal. What followed was redrafting of contracts with Egyptian clients, formal apologies and a close analysis into the world of such litigation.[2]


One of the first concepts taught in law school is a reiteration of each state having a unique governmental structure complete with administrative and judicial functions. While justice is indeed a global concept, the mode of its administration and thus the delivery process varies across jurisdictions. That fact alone meant that individuals had to be trained or admitted to practice in national courts to defend others in different countries. Some countries have explicit rules barring foreigners from the practice while some make liberal exceptions. Somewhere along the spectrum of a complete ban to a limited practice exists this thriving sector of strategic litigation on a transnational plane.


Strategic litigation is defined as the identification and pursuit of legal cases as part of a strategy to promote human rights. It focuses on an individual case in order to bring about broader social change.[3] But what the process on an international plane necessarily entails is the presence and active involvement of the litigator in the country and legal system of the client. NGOs that undertake this type of litigation are almost always from the developed world, armed with the enthusiasm and funding to ‘change the world’. While their intentions appear noble, the tools and incentives are slippery at best.


Before proceeding with the intricacies of the process, it is well worth noting its intrinsic yet clear distinction with the practice of Human Rights Advocacy, Civil Society Interventions and Relief Work.[4] Advocacy is a process involving the harnessing of support for a particularly vicious law or practice and making widespread representations before the administrative and political legs of the benefactor government. Organisations like Amnesty International that preach and practice the name and shame model are cases in example.[5] They expressly call out on sovereign governments and dictators shaming them on a global stage. Both Advocacy and Civil Society interventions are entrusted with the task of setting a narrative, directing focus and guiding discourse. Whereas aid or relief work stands on a separate footing where the task is strictly limited to distribution and access of essentials to human beings in conflict zones or in adverse and hostile environments, strategic litigation, though similar to the other two by definition, confines itself to national or regional courts and individual cases.


Just as it begins to look like flowers and sunshine for a world starved of justice, the reality creeps in. The presence of strategic litigators (who are more often than not of western origin) is always coupled with meaningful partnerships with local grassroots organisations who in turn pledge to provide context and become the token face for procedural hurdles as and when they appear. The problem begins when these strategic powers superimpose themselves on the experiences and choices of the people they represent. Often these western legal NGOs assume higher expertise than local partners and tend to believe ‘they know better.’ This follows a renewed focus on compensation, less faith in traditional/community-based dispute settlement means and a tendency to quantify harm at every step. We may argue that strategic advocacy by design cannot be exclusive to extra-legal forces of society,[6] it after all exists at the intersection of human rights and humanitarianism: NGOs work on behalf of distant others while adopting the persona of a grassroots movement championing the rights of their own group. It’s just that in the process of adoption of the persona, NGOs engaging in such litigation end up appropriating the movement of a local group, hijacking a narrative that wasn’t theirs to begin with.


On multiple occasions over the past one year, I have wondered how my colleagues in California decided strategy and ideal terms for survivors who never left the pacific islands of Samoa! Sometimes I have been impertinent enough to ask the question aloud, to which I was always told, “My dear, each of us has spent a lot of time in the conflict-ridden middle east. We know all about the world and its problems!”


Sadly enough, the process doesn’t end there. Every dispute being non-state donour financed is assigned a quantifiable impact indicator. Which means the same threshold has to be applied to outcomes of cases across the world to measure if they were successful or not. And unfortunately, this threshold is usually an abysmally low one, completely devoid of any moral implications. In one of my early career conversations with an American NGO, I was once asked about the scope of such strategic litigation in India. Discussing the grim realities of sexual violence, I was stumped by their primary concern. How much compensation do you think we could get per case in these situations? I have unfortunately witnessed similar situations where vulnerable women from LDCs have been convinced again and again that their case was “won” and justice was delivered, as compensation was in four figures for them!



Surviving the Saviour Complex:


We may decide to forgive the western litigators for devaluing the success threshold in light of their altruistic motives. After all, how many entities do we see who fight our cases for free, pay us for letting them do so and also tell the world our success stories! But then Teddy Roosevelt lived and died to remind us that ‘nothing in the world comes easy’! In this complex chain of funding and attention, the crucial element is and remains the business of optics. Funds will graciously flow in only when the litigators show their ‘relentless efforts, compassionate selves and altruistic motivations’, all in a single frame. And the quest of this is what throws up a rather ugly image of the trade and humanity in general.[7]


The idea of standing up for people in different parts of the world by living with them, aiding their legal battles and supporting them through an otherwise arduous process sounds noble in its letter. But when the entire process is dependent on making the perfect image, the cracks run deeper than the surface. Most, if not all organisations that venture into the “orient” capitalize on the Western gaze. Catering to western donors and audience alike, the idea is to deliver a certain type of “justice” which convinces the world that the job has been done. As finances become decentralized, the competition to cater becomes more intense. Depicting conflicts in heart-wrenching images and placing the ‘saviours’ within the frame of live-action is a working strategy. This traditional fundraising and depiction strategy is common across the West and persists despite vocal criticisms that it demeans subjects (of the images), exoticizes suffering, and reinforces inequality.[8]


The constant portrayal of the vulnerability spilling into the indignity of survivors reinforces the narrative of the racial power struggle, where one liberates the other. The relationship between the Western advocate­ subject and non-Western victim-object is shaped by distance and fraught with complex power differentials. I have now lost count of the number of times I have been asked to ensure that my Caucasian colleagues were a part of the photos when the client was a person of colour, “you know, to maintain a political balance”!



One would hope that the ideal way forward is to envisage a movement that acts more symbiotically with the indigenous movements and organizations, rather than as gatekeeper and benefactor.[9] Image and advertisements will remain an inherent part of litigation if the current system of grant-based financing remains in place. What we can do is cure the social malady, is to ensure that the recipients captured in the frame, though in a receiving position are not depicted as a desperate and lacking agency. They are depicted as what they often are on the field, disillusioned yet determined. They are partners in humanitarian aid, not merely a passive recipient of it. But ironically enough, western organisations realize that an empowered and equal local partner can in the future undermine the need and importance of their work and optical presentation, thus affecting their income and power to shape the narrative. This reason alone drives forward the visual strategies of many organisations that thrive on the spotlight that they case on themselves throughout the process.



Conclusion: It’s all about the optics


As optics and visualization become the chief ammunition ensuring survival in the field of strategic human rights litigation, foundational values, norms and methodology take a back seat. An abject culture of racism is popularized under the garb of creating the perfect image. Despite the world being in the twenty-first century, it is important to remember, that justice too is ingrained deeply within specific cultural contexts of a nation. A toxic culture of racism does not begin with guns and state excesses. The fostering and internalization of the idea that the perfect image has pre-assigned roles, where people of colour must be shown suffering and its alleviation by the compassionate western ones itself is proof of the racial dynamics. The homogenization of justice and the quest for a unified solution packed with retribution and restoration all in the same box are all a part of the problem more than the solution.


In the operations office in California, the team was going through photographs, the content desk was tasked with putting together the most powerful and heart-wrenching video with quotes. Sandra shouted across the room:


"Remember to put our photos too? Sorry? Our photos? Yeah, to show us in a leadership position and yeah, put a quote about how thankful the survivors are to me and Cindy. The donors want to see the people behind the work! And someone get me a coffee please!” [10]


***



* The author is a human rights activist and currently an associate with Strategic Advocacy for Human Rights (SAHR), USA. She has provided strategic and legal support to victims of gender-based violence through SAHR, UK. Founder of Darya Project, Ms Meher, has done her LLM in Human Rights from the London School of Economics and has graduated from Gujarat National Law University.




[1] Gujarat National Law University, Gandhinagar [2] This article is an opinion piece and is entirely based on the author’s personal views and experiences. [3] Mónica Roa & Barbara Klugman (2014) "Considering strategic litigation as an advocacy tool: a case study of the defence of reproductive rights in Colombia", Reproductive Health Matters, 22:44, 31-41, available at DOI: 10.1016/S0968-8080(14)44804-3 [4] Joel R Pruce, (2017) "What Does Human Rights Look Like? The Visual Culture of Aid, Advocacy, and Activism", Political Science Faculty Publications. 113 available at https://ecommons.udayton.edu/pol_fac_pub/113 [5] Ibid. [6] Dimitrina Petrova, "Strategic Human Rights Litigation in tough times", OpenGlobalRights, available at https://www.openglobalrights.org/strategic-human-rights-litigation-in-tough-times/ [7] This article is based on strategic litigation by actors in the not-for-profit sector only. [8] Supra Note 4 [9] Cesar Rodriguez-Garavito, "The Future of Human Rights: From Gatekeeping to Symbiosis," Sur: International Journal of Human Rights 11, 20 (June 2014), https://sur.conectas.org/en/the-future-of-human-rights-from-gatekeeping-to-symbiosis/ [10] The quotes are non-fictionalized accounts of the author’s experiences at a US firm. Names have been changed to maintain anonymity.



Image Source: https://ohrh.law.ox.ac.uk/just-for-kids-law-releases-animation-series-explaining-strategic-litigation/





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