The Role of NGOs in the

protection of human rights

Adam Bodnar

Poznań, 6 September 2010

Course on International Protection of Human Rights
 What is NGO?
• NGO is a non-governmental organization
• NGOs are part of the „civil society”
• „Civil society” is a broader term – includes also churches, religious
associations, trade unions, interest groups, organizations of employers etc.
• NGOs are intermediary between individuals and the government in
transmitting ideas and concepts
• Different types of NGOs:
– International and national
– Main-stream or focused on selected issues
– Grass roots’ organizations
– Different scope of activities
– Activist organizations vs. think tank organizations
– NGOs acting in a public interest vs. NGOs pursuing particular interest (e.g.
lobbying NGOs)
• Some NGOs are concentrated on protection of human rights
• Most NGOs – independent from government (as compared to GONGOs)
 Examples of human rights NGOs
• International
– Amnesty International
– Human Rights Watch
– Interights
– International Committee of Red
Cross
– European Human Rights
Advocacy Center
– Fair Trials International
– Mental Disability Advocacy
Center
– International Lesbian and Gay
Association (ILGA)
– Article 19
– Reporters without Borders
– Open Society Justice Initiative
• National
– American Civil Liberties Union
– Reprieve (UK)
– Liberty (UK)
– Statewatch (UK)
– Helsinki Foundation for Human
Rights (Poland)
– Campaign Against Homophobia
(Poland)
– Article 42 (Georgia)
– Georgian Young Lawyers’
Association
– Legal Education Society
(Azerbaijan)
– Memorial (Russia)
 Activities and methods
• Depending on mission and scope of operation NGOs use different
methods in order to protect human rights
• Over the years the role of NGOs grows (e.g. rapid development of Human
Rights Watch)
• NGOs understand sometimes differently the notion of „human rights”
(possibility of abuse)
• Most important features of NGOs dealing with human rights
– Credibility
– Public trust and confidence
– Responsiveness
– Independence
– Dynamism
• Why: NGOs may have impact:
– they do not make political decisions
– NGOs are responsible before the society and their sponsors
– NGOs are transmitter of views of the society to the government
 Four basic methods

• Monitoring
• Advocacy
• Strategic litigation
• Education
 Monitoring
• NGOs – role of watchdog – controlling the government and other
institutions (also private institutions)
• Monitoring:
– Selected issue
– Day to day monitoring (e.g. freedom of speech)
– Controlling compliance with certain standards (e.g. controlling prisons
in certain area)
– Preparation of reports on compliance with human rights on the basis
of monitoring
• Results: (i) reports, (ii) interventions, (iii) raising awareness, (iv)
accountability
• Examples:
• HRW report on violations of human rights in Russian-Georgian conflict
• MDAC report on guardianship laws and incapacity in Bulgaria
• HFHR report on disciplinary responsibility of prosecutors in Poland
 Purposes of monitoring
 to help people (monitoring + intervention)
 to have independent data and be a reliable source for media
 to compel the government to change the law or practice
 to compel business to change practices (e.g. sale of palm oil)
 to show violations to international community (e.g. cluster
ammunition in conflict in Georgia)
 to prepare reports to international bodies (e.g. European Union,
Council of Europe, United Nations organs, Universal Periodic
Review)
Shadow reports – alternative reports prepared by NGOs in response to
official governmental reports submitted to international organs
- e.g. shadow report under the International Covenant on Civil and
Political Rights
- reports submitted to the Human Rights Council within the UPR
 Barriers to monitoring
• Sometimes need of cooperation with government (e.g.
controlling prisons)
• Serious monitoring requires human resources, time and
money
• You cannot expect results immediately – it is rather long-
term investment
• Monitoring in conflict zones (or concerning certain issues)
may be risky and life threatening: example: Chechnya
• In order to be influential, sometimes NGOs may need a
special status at a certain international organization (which
is usually difficult to obtain for smaller organizations), e.g.
– consultative status at the Council of Europe
– consultative status at the ECOSOC - UN
 Advocacy
• Advocacy means arguing on behalf of a certain
issue, idea or person
– Changing the attitude of government
– Showing the problem
– Convincing the society
• Advocacy usually is implemented by NGOs, but
may be implemented by a group of individuals
(e.g. individuals fighting for abolition of death
penalty in a given country)
• Advocacy means fighting for sth, but without an
intent to be elected for public position
 • Methods:
Example of advocacy –
Cluster Munition Coalition
The Cluster Munition Coalition (CMC)
is an international coalition working to
protect civilians from the effects of
cluster munitions.
The CMC has a membership of around
300 civil society organisations from
more than 80 countries.
The CMC supports the initiative known
as the ‘Oslo Process’ to prohibit cluster
munitions and assist affected
communities.
– Signing letters and petitions
– Building international
coalitions
– Informing the public opinion
on the problem
– Convincing famous persons
to support activities
– Public events and protests
– Organization of conferences
and other events
– Engaging people into actions
 International and national advocacy
• International advocacy – typical topics
– Abolishing death penalty
– Release of political prisoners
– Counteracting HIV/AIDS
– Abuse of human rights by corporations
– Anti-terrorism legislation and human rights
– Domestic violence
• National advocacy, examples:
– Availability of contraceptives and access to abortion
– Ratification of an international convention by a given country (e.g. CoE
Convention on Access to Documents, UN Convention on Rights of People with
Disabilities)
– Establishing ombudsman or equality body, reform of the constitutional court
– Protection against hate speech

EFFECTIVE ADVOCACY MAY NEED MONITORING

 Strategic litigation
• The objective of strategic litigation is to make
significant changes in law or legal practice through
litigation of the carefully selected cases
• Famous examples of strategic litigation:
– Brown v. Board of Education of Topeka (segregation in schools)
– D.H. and others v. Czech Republic (discrimination of Roma children in
schools)
– Bączkowski and others v. Poland (ban of assembly organized by LGBT
groups)
– Opuz v. Turkey (domestic violence)
– Nachova and others v. Bulgaria (burden of proof in racially motivated
killings)
 Advantages of strategic litigation
 effect of scale (with one case you may resolve the whole problem)
sometimes litigation is sufficient to resolve the problem (even if
you do not win the case)
 different additional functions (raising awareness, education on
rights, involvement of civil society)
 it does not replace legislative reforms but may speed them up
 elimination of unjust loopholes in the legal system
 best education for human rights lawyers
domestic courts are usually not prepared for purely legal,
professional argumentation
 pressure on enforcement of judgments issued by domestic and
international courts
 Steps in strategic litigation
• Identification of a problem
• Selection of a „good” case
• Start of proceedings
• Representation of victim in court proceedings
• Informing the public opinion on the strategic
character of the case
• Winning the case (usually long-term process)
• Monitoring of an enforcement of judgment by
the government
Reality is much more complicated than the above model
 Strategic litigation – courts and
international organs
• European Court of Human Rights
• Possibility to submit third-party
intervention (e.g. Grzelak v. Poland
case)
• Communications to the Committee of
Ministers (enforcement stage)
• Council of Europe Committee on
Social Rights
• E.g. Interights vs. Croatia
• UN Committees (esp. Human Rights
Committee)
• E.g. Belarussian cases
• Inter-American Court of Human
Rights
• E.g. access to information cases
• European Court of Justice (esp.
discrimination cases, EU citizenship
cases)
• Tadao Maruko case and ILGA
• Constitutional courts
– Representation of victims
– Standing for NGOs as amicus curiae in
Poland and in other countries (e.g.
Georgia, Slovenia)
• Supreme courts
• Usually different role than
constitutional courts
• Ordinary and administrative courts
• Effective instruments:
– constitutional complaint
– action for damages
– access to public information (e.g. TASZ
v. Hungary, CIA rendition project in
Poland)
– Unlawful detention complaints
– Length of proceedings complaint
– SELECTION OF METHODS DEPENDS
ALWAYS ON A SPECIFIC CASE
Enforcement of ECtHR judgments
 the most powerful human rights court in the world
 individual enforcement of judgments:
 restitutio in integrum (e.g. Assanidze v. Georgia, Sławomir Musiał v. Poland)

 re-examination or re-opening of a case (e.g. Cudak v. Lithuania)

 payment of just satisfaction (e.g. L. v. Lithuania)

 general enforcement – prevention of further violations

 change in law (including Constitution) – (Kiss v. Hungary, Tysiąc v. Poland, Kudła v. Poland)

 change in practice (e.g. use of pre-trial detention)

 judicial practice (direct and indirect application of the ECtHR – e.g. extradition cases)

 Interlaken process – bringing the Convention back home

role of the Committee of Ministers and the Parliamentary Assembly of Council of
Europe in supervision of judgments’ enforcement
 role of NGOs in enforcement proceedings
Examples of current strategic cases
• Non-appointment of 10 judges by the President of Poland
and threat to judicial independence
• Access to statistical information on wiretapping and
surveillance in Poland
• Criminal responsibility for the insult of the President of
Poland
• Access to the profession of prosecutor by a person using
wheelchair
• Farcas v. Romania: access to public buildings for persons
with disabilities (Interights)
• Vejdeland v. Sweden: freedom of speech vs. hate speech
due to sexual orientation (Interights)
• Zhovits v. Kazakhstan: fair trial of human rights defender
(OSJI)
 Education
• Education on human rights is an important element of NGOs’ activities
• Education is a priority for many organizations. In some countries it is the
only method to advance human rights
• You can educate on: human rights’ standards or skills how to advance
human rights (for other NGOs or activists)
• Human rights’ education may be subject of manipulation
• e.g. „Compass” handbook,
• situation in CIS countries – so called „horizontal” approach to human rights
• Education has only indirect and long-term impact on human rights’
protection
• Special educational methods:
• Law clinics (e.g. at universities)
• Street law
• Education through personal involvement (workshops, actions, individual small
projects)
• Monitoring projects with the personal involvement of students (e.g. Court
Watch project)
 Funding
• NGOs „watch dog” activities usually must have independent
financing
• institutional grants vs. project grants
• International donors: Open Society Institute, Ford Foundation,
McArthur Foundation, Sigrid Rausing Trust, Trust for Civil
Society in CEE
• Domestic donors: law firms, individual donors, some
corporations (CSR practices)
• International organizations: European Union, EFTA, Swiss
Cooperation Fund
• Special status of NGOs – 1% of tax from individuals
• usually most advanced and strategic activities need long-term
financing in order to be effective
Thank you for attention

Adam Bodnar, Ph.D., LL.M.

Helsinki Foundation for Human Rights
Ul. Zgoda 11
00-018 Warsaw, Poland
a. bodnar@hfhr.org.pl