Strategic litigation in the field of human rights – what does this entail?

Strategic litigation is the use of legal action to bring about certain social, political or legal changes. The goal of strategic litigation is not to win a case for a particular client, but the impact the legal procedure can have on broader interests. For this reason, strategic litigation is also known as impact litigation.

Strategic litigation is a supplement to other ways of bringing about change; from lobbying and advocacy to community organizing and protests. An organisation focused on strategic litigation should therefore act as an ally to activists, NGOs and grass roots organisations.

The start of a potential opportunity for strategic litigation begins with an examination of what communities, activists, scientists, lawyers or NGOs feel is posing a problem: what hurts and where? From there, it needs to be considered whether litigation is indeed the best method to solve the issue. If so, what type of procedure is relevant and when is the best time?

Usually, the aim is to go to court for a legal victory, but sometimes you can win by losing a case. Where injustice is exposed and publicity generated, there is often opportunity to move closer to the end goal regardless of the outcome of the case.

Anglo-Saxon tradition

Strategic litigation is a familiar phenomenon in the Anglo-Saxon tradition. The American Center for Constitutional Rights has a long and inspiring history of strategic litigation for social change. The Open Society Justice Initiative (OSJI) wrote a report on how they look at strategic litigation, filled with examples on international cases they have taken on. In South Africa, too, the practice of strategic litigation is well developed. In that context, organisations such as Lawyers for Human Rights, the Legal Resource Centre, and the Equal Education Law Centre lead the way.

Dutch examples

Dutch examples of strategic litigation include:

1. The SGP-case, in which the NJCM was co-claimant, on the subsidy that the Dutch state provided a political party that did not allow women to be members.
2. The ‘Bed-Bad-Brood‘ case, where the We Are Here organisation, together with the Fischer Groep, litigated the rights of undocumented people to food, clothing and shelter.
3. The Klimaatzaak of Urgenda, in which the court decided the Dutch State should do more to prevent climate change.

The PILP and strategic litigation

The PILP works on a variety of issues in different ways; from supporting a case by writing an amicus curiae, to instigating strategic litigation. The NJCM has been co-claimant in several of our procedures, and Jelle Klaas, litigation director of the NJCM and Merel Hendrickx, in-house lawyer, have often acted as part of the legal team. In almost all files, members of the NJCM or NJCM working groups play an important part. For example, they help to write legal documents, conduct legal research, or support a specific file in a specialized way.
The PILP has funding to cover the court and registry costs. While most lawyers work on PILP cases via Pro Bono Connect, another NJCM project, some receive a small fee for their work.

Almost every PILP theme is a subject of a shadow report written by the NJCM.

PILP Cases

Blog and press statement statelessness and the Denny case

At the end of 2020, the UN Human Rights Committee has taken a ground breaking decision in the case of 10-year-old Denny brought by human rights lawyers Jelle Klaas (PILP-NJCM) and Laura Bingham (Open Society Foundations). The UN Human Rights Committee found that the Netherlands does too little to guarantee the right to nationality for children. The Dutch State must now report back to the UN within six months, stating which actions have been implemented to right this wrong. In order to meet the requirements as laid down in several international legal documents, Dutch authorities must amend their recently proposed draft legislation on child statelessness. This press statement delves deeper into the verdict by the UN Comittee, and this blog by Jelle Klaas and Laura Bingham provides further information on this case and statelessness in general. 

Blog on arms trade

One of our files is on the Dutch arms trade. In a blog for Humboldt University, Jelle Klaas and Merel Hendrickx explain how the case was developed.

Hague Talks video on the extinction policy

We are working on a case regarding the extinction policy that some municipalities of the Netherlands have implemented for travellers’ sites. In this case, we work with a lot of Roma, Sinti and Travellers communities. In the Hague Talks video below, Jelle Klaas speaks about the legal procedure against the extinction policy for these communities.

Video by the PILP on the extinction policy

Take a look at a video we created about our file on the extinction policy for travellers’ sites.

Do you want to read more about strategic litigation?

Read the introduction on strategic litigation by Jelle Klaas at the NJCM Seminar ‘De Klimaatzaak en strategisch procederen voor mensenrechten’, that was held October 22, 2015, in The Hague.

You can also take a look at a presentation about strategic human rights litigation by Jelle Klaas presented for human rights defenders in Sarajevo in 2015.
Project Officer Merel Hendrickx visited Belfast in October 2016 to attend a conference entitled ‘Litigating for Social Change.’ Read her report here.

Lucia van der Meulen published an insightful paper in 2019 about our litigation (strategy and successes) against arms trade.

Employees of the PILP-NJCM, Jelle Klaas, Merel Hendrickx and Rosa beets have written a guide on how strategic litigation can combat ethnic profiling in the European Union.