Tag Archives legal mobilisation

Mobilising for a Just World: Legal Mobilization for Whom?

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Both scholars and practitioners engaged in either researching or advancing legal mobilization recognize that law can be used to guide legal interventions seeking to trigger transformative justice. A persistent question faced by legal mobilization practitioners and researchers alike is: who are we mobilizing for, and with whom? As a member of the Legal Mobilization Platform (LMP), I sought to answer this question during the platform’s launch on 12 January 2023 in The Hague.

Who takes the lead in legal mobilization claims?

It should be a standard response that any legal mobilization claim should be led by individuals and organizations who experience violations. However, this is not always the case. The structure of the legal profession often obscures the agency of those whose rights have been violated. Contradicting the approach of Systemic Justice, those who are centred in strategic litigation are often the NGOs and law firms – however well-intended – that are officially presenting a particular claim, rather than the communities and individuals affected by violations.

As a researcher wanting to understand these dynamics better, but also as someone with a long history of advocacy in my earlier career as a human rights lawyer, it has always been important for me to understand the objective of a legal mobilization claim and to critically reflect on my role in it.

The Legal Mobilization Platform (LMP) is a large and broad platform of researchers and practitioners, where legal mobilization researchers and practitioners can interact with each other in a dynamic and reflective shared space. From the overwhelming responses we have received thus far, there appears to be a very strong interest in better understanding and reflecting upon which forms of legal mobilization work and which don’t to trigger transformative change. To give an example, LMP-member Systemic Justice orient their work around “community-driven litigation”. Their goal is

…to radically transform how the law works for communities fighting for racial, social, and economic justice. Centring affected communities in joint litigation, Systemic Justice will help broaden access to judicial remedies for those fighting for justice and equality. This will help dismantle the power structures that underpin and fuel racial, social, and economic injustice.

 

People can certainly be both a researcher and advocate. However, these roles are different: what researchers aim for are solid arguments based on a convincing methodology; for practitioners, the aim is for transformative change. Without being clear what one’s role is, one can end up being of little use to either scholars or to activists. Nevertheless, for both researchers and practitioners, being a critically reflexive researcher or a conscientious advocate may involve standing up for cause, just as much as it may be necessary to step back, allowing others to take up the research or advocacy space and above all supporting others, or what Aminata Cairo refers to as “holding space”.

 

Recognizing one’s privilege

The questioning of who represents what goes even further than this. Before deciding whether one has the legitimacy to either research or represent a cause, it is critical for one to recognize one’s privilege. Critical scholars problematize this from the fields of critical race studies, critical feminist studies and critical legal studies, such as TWAIL. From a methodological standpoint, it is critical to recognize one’s positionality in relation to both the issues and people that are the focus of research, as well as the importance of praxis.

However, even more crucially, social justice activists frequently insist on questioning who, and in what manner, individuals can credibly speak out on issues such as the Dutch slavery and colonial heritage, which is currently a topic of much debate in the Netherlands and a focus of the LMP.

 

The challenges of patriarchy, racism, elitism, and anthropocentrism

Apart from crucial matters of ownership and positionality, there are myriad institutional structures and systems that can pose challenges for legal mobilization practitioners to navigate. To begin with, the patriarchal character of law, legal process and systems, including universities and the legal profession, structurally privileges men. But this is not the only problem. Patriarchy also corrodes the way institutions operate, with a tendency towards non-collaboration, individualism, and a high level of competitiveness. Similarly, the racialized character of law, legal processes, and systems structurally privilege white people. We see this problem in efforts to accomplish gender diversity and inclusion, within the public sector, courts, and universities where racist stereotypes persist, and even within NGOs, as Doctors Without Borders has acknowledged.

Alongside patriarchy and racism is the elitist character of the law and legal process that systemically protects the interests of a handful of affluent people, the so-called 1%, allowing some individuals to acquire massive opulence that can eclipse the GDP of entire nations, while allowing ample opportunities to avoid the payment of tax, hindering the equitable distribution of wealth.

And finally, the law and legal process tend to be highly anthropocentric, which means that they structurally privilege humans and disregard non-human interests. Here we are talking about the rights of nature, which researchers such as Dr. Daphina Misiedjan focuses much of her research on.

All of this involves (or at least it should) a great deal of legal learning, which Karim Knio and Bob Jessop recognize are part and parcel of a pedagogical approach to understanding how crises, whether they be of a financial, social, or political nature, are construed and managed.

 

More than litigation

Finally, legal mobilization is much more than litigation alone. As Eva Rieter and I have argued, it is about many different uses of law, incorporating other confrontational forms, including, but not limited to, litigation, e.g. protests, corporate shaming, civic boycotts. But legal mobilization can also adopt cooperative forms, such as participation in policy-making processes, training courses on systemic racism awareness, and partnerships with municipal and national government actors and law enforcement officials to develop, monitor, and implement policies for tackling systemic racism.

In all respects, solidarity is key. Solidarity involves first and foremost, listening to those affected by racial, climate, and socio-economic injustice, which is not always easy for researchers and practitioners alike as systemic justice involves one fundamentally questioning liberal values that are dominant both in systems of law and governance, not to mention economic relations.

 

The future of legal mobilization

So how should one take these reflections forward in practice? A key strategy for tackling all of these dilemmas in legal mobilization practice has been demonstrated by Amsterdam-based member of the Platform Public Interest Litigation Project or PILP, which applies a broad understanding of strategic litigation and asks, “Where does it hurt?”.

Another example of going beyond litigation is De Zwart Manifest (“Black Manifesto”), which recognises that, according to the Dutch Constitution, “everyone in the NL is treated equally in equal circumstances”. However, “the reality is different. In the NL there is a racialized order”. In other words, the claim of the manifesto is not to champion equality, but rather to redress systemic inequalities, or what Gloria Wekker, a member of the Legal Mobilizational Platform, refers to as “radical equality”.

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

Jeff Handmaker is Associate Professor of Legal Sociology at the International Institute of Social Studies and, together with Margarethe Wewerinke-Singh at the University of Amsterdam Law School, a member of the Steering Group of the Legal Mobilization Platform

 

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Countering attempts to undermine the rule of law through lawfare in Suriname by Jeff Handmaker

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In November 2019, an all-women panel of judges presiding over a decade-long court martial in Suriname convicted Desiré Delano Bouterse, the country’s current president, for international crimes that include torture and extra-judicial executions. While legal mobilisation can legitimately be used to bring about justice, Bouterse and his supporters have used lawfare to try to prevent his trial from proceeding. The trial eventually took place and Bouterse was sentenced to 20 years in prison, while some of his co-accused were acquitted. Bouterse remains in office following the judgement, and it now remains to be seen whether legal mobilisation will triumph over ongoing attempts to use lawfare to undermine the rule of law.

The December Murders

Apart from its historic significance, the case against Bouterse and his co-accused for international crimes is a vivid illustration of the use of lawfare and legal mobilisation, both of which I have been following closely as an independent trial observer and as a researcher generally. The case concerns events that took place in December 1982, referred to by many as the so-called December Murders, at the time when Bouterse served as a commander in the Suriname army after having participated in a military coup. Various accounts of the events reported that 16 men, a combination of civilians and soldiers, all of whom were openly critical of Bouterse, were arrested in the middle of the night, brought to a military base at Fort Zeelandia (dating back to the colonial era), lined up against a wall, and shot. The bodies were brought to a local hospital for investigation, where it became evident that the men who perished had not only been executed without a trial, but had also been tortured.

A trade unionist who managed to survive the incident, Fred Derby, later filed an official statement about what had happened in 1982, which became a crucial part of the evidence presented once the court martial was established in 2007. Three years later, in 2010, despite the ongoing trial, Bouterse was elected president, a position he subsequently used to hinder the trial’s development.

At the time the court handed down its judgement in November 2019, which had been twelve years in the making, Bouterse was abroad on a trade mission in China. He returned to Suriname a few days later, perhaps after obtaining confirmation that a warrant for his arrest had not been issued, receiving a large and enthusiastic welcome at the airport from his supporters. Statements made through his lawyer questioning the legitimacy of the court’s judgement, and which undermine the rule of law, have been published in the local media.

Using lawfare to bend the law in one’s favour

As head of a trial observation mission appointed by the International Commission of Jurists (ICJ) in Geneva, I have been following this trial closely since May 2012. The case has revealed several examples of lawfare, whereby numerous law-based manoeuvres on the part of Bouterse himself, as well as his legal representative, his appointed officials, and members of his political party in the legislature have sought to undermine the rule of law in Suriname, and, more specifically, to stop the trial from taking place.

The court martial took over a decade to issue its judgement, during which period there was extensive use of lawfare to either delay or completely shut down the trial. These included legislating an Act of Amnesty (later declared by the court to be unconstitutional), ordering the prosecutor to suspend the trial, and otherwise seeking to interfere with the prosecution process through replacing the Minister of Justice. Neither of these lawfare efforts were successful and the court’s judgement stands.

The case has also revealed many examples of legal mobilisation, whereby various actors have played different roles to counter the use of lawfare and uphold the rule of law. The families of those who were murdered have continually campaigned to have Bouterse and his accomplices brought before an independent criminal tribunal. During the trial itself, international organisations such as the ICJ have called for the respect of international fair trial standards, and journalists (mostly local) have consistently sought to ensure that the case was correctly reported. In all instances, rigorous attention to the correctness of law-based arguments were a prominent feature during the trial that spanned several years; this proved to be an effective strategy, aimed at preserving the fair and equal application of justice and the rule of law in Suriname, values that are widely shared in the country following hundreds of years of colonial rule.

Reactions to the trial

While several prominent news outlets, including several in the Netherlands, as well as the Associated Press, Al Jazeera, the New York Times, and the BBC briefly reported on the judgement, the trial itself has not enjoyed much attention outside of Suriname. Inside Suriname, however, there have been extensive reactions from various actors who have been closely involved in the case, either seeking to uphold or undermine the rule of law.

Betty de Goede, a leader/founder of the Organisation for Justice and Peace (OJP) in Suriname, which represents many families of those who were killed in December 1982, observed at an inter-denominational service organised by the OJP that the rule of law held much value to the people of Suriname, and hence “the judgement (against Bouterse) cannot be ignored”. At the same service, Soeshila Baldew-Malhoe, a prominent Hindu theologian in Suriname, was more strident, declaring that while “Bouterse had no respect for the rule of law” he was warned that

… people must know that every action has consequences. Mr. Bouterse should have known then that the truth would one day come to light … it gives a good feeling to know that the rule of law is alive… everything depends on the rule of law, and when justice is given, everyone must adhere to it, regardless of the person’s social position.

Ignoring potential repercussions against them, the legal community in Suriname has been active and outspoken, including attorney Gerold Sewcharan, who represented Edgar Ritfield, one of Bouterse’s co-accused. Ritfield was one of those acquitted by the court, and characterised Bouterse as a “convicted felon”.

However, a warrant for Bouterse’s arrest has yet to be issued, and in the meantime, there have been efforts to politicise the judgement and undermine the judiciary. One of the main opposition parties, the “Democratic Alternative” (DA), published an Open Letter to the president, calling on him to resign. This has, however, not caused Bouterse to reconsider his decision to remain in power, nor has he lost credibility within the political party he chairs, the NDP, which has condemned the judgement as being “politically motivated”. Whatever happens next, it is certain that many more people, both in Suriname and abroad, will be following the outcome with considerable interest and anticipation.

Image Credit: sunsju on Flickr

JeffHandmakerISS
About the author:

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here.