Litigating human rights 1/2: Amnesty International’s interventions before international tribunals

Faroe_stamp_131_amnesty_international FREE COPYRIGHTAmnesty International is known for being a vocal organisation: many of its activities are carried out publicly, via petitions, demonstrations, declarations. A large part of Amnesty International’s work, however, happens quietly, in backstage meetings and private conversations. Or before national and international courts and tribunals, where Amnesty International often appears as a third party or amicus curiae.

This post lists selected international cases in which Amnesty International has intervened, most often as a third party or an amicus curiae. It is a tribute to all the women and men who have contributed their vision and passion to this work, as well as to the lawyers who have lent their professional skills to human rights, representing Amnesty International pro bono.

Fore more info, have a look at: Dean Zagorac, “International Courts and Compliance Bodies: The Experience of Amnesty International”, in Tullio Treves (ed.), Civil Society, International Courts and Compliance Bodies (T.M.C. Asser Press, 2005), p11 ff.

International Courts

African Commission on Human and Peoples’ Rights

Amnesty International submitted several communications to the African Commission under Article 55 of the African Charter on Human and Peoples’ Rights

Amnesty International v Zambia, communication no. 212/98

Amnesty International and others v Mauritania, Communications no. 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98

  • Decision, 27th Ordinary Session, Algiers, 27 April – 11 May 2000

Amnesty International and others v Sudan, Communcations Nos. 48/90, 50/91, 52/91 and 89/93

  • Decision, 26th Session, Kigali, 1–15 November 1999

Amnesty International v Tunisia, Communications no. 69/92 and 79/92

  • Decision, 13th Ordinary Session, Banjul, 29 March – 7 April 1993

Chutan (on behalf of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, Communications Nos. 64/92, 68/92, AND 78/92

  • Decision, 17th Session, Lomé, 13–22 March 1995

Community Court of Justice of the Economic Community of West African States (ECOWAS)

Civil Society Associations Gambia (CSAG) v Gambia

 SERAP v Federal Republic of Nigeria

Court of Justice of the European Union

X, Y and Z v Minister voor Immigratie, Integratie en Asiel (Minister for Immigration, Integration and Asylum), Joined Cases C-199/12, C-200/12, C-201/12

N.S. v Secretary of State for the Home Department (Case C-411/10) and M.E. & Others v ORAC (Case C-493/10)

European Court of Human Rights

Husayn (Abu Zubaydah) v Poland, Application No. 7511/13

A. P. and others v France, application no. 79885/12

  • Written comments submitted jointly by Amnesty International, ILGA Europe and Transgender Europe (TGEU), 24 July 2015

M.E. v Sweden, application no. 71398/12

  • Written submissions on behalf of Amnesty International, 11 April 2013 [on file with Amnesty International]
  • Judgment (Merits and Just Satisfaction) of the Court (Fifth Section), 26 June 2014

Alekhina and others v Russia, application no. 38004/12

  • Written submissions on behalf of Amnesty International and Human Rights Watch, 14 April 2014 [on file with Amnesty International]

Al Nashiri v Romania, application no. 33234/12

Tarakhel v. Switzerland, application no. 29217/12

Abu Zubaydah v Lithuania, application no. 46454/11

S.A.S. v. France, Application No. 43835/11

Al Nashiri v Poland, Application No. 28761/11

El-Masri v. the former Yugoslav Republic of Macedonia, application no. 39630/09

Hämäläinen v. Finland, application no. 37359/09

  • Written observations of Amnesty International, 13 September 2013 [on file with Amnesty International]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 16 July 2014

M.S.S. v Belgium and Greece, Application No. 30696/09

Hirsi Jamaa and Others v Italy, application no. 27765/09

  • Written submissions on behalf of the AIRE Centre (Advice on Individual Rights in Europe), Amnesty International and the Fédération internationale des ligues des droits de l’Homme (FIDH) [on file with Amnesty International]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 23 February 2012
  • Amnesty International, Italy: ‘Historic’ European Court judgment upholds migrants’ rights, public statement, 23 February 2012

Sharifi and Others v. Italy and Greece, application no. 16643/09

Othman (Abu Qatada) v. the United Kingdom, application no. 8139/09

P and S v Poland, Application No. 57375/08

Z v Poland, Application No. 46132/08

  • Written submissions on behalf of Amnesty International [on file with Amnesty International]
  • Judgment (Merits and Just Satisfaction)  of the Court (Fourth Section), 13 November 2012

Janowiec and Others v. Russia, application Nos. 55508/07 and 29520/09

X and others v. Austria, application No. 19010/07

Jones and Others v the United Kingdom, applications no. 34356/06 and 40528/06

  • See below for the UK proceedings
  • Written comments by Redress, Amnesty International, Interights and Justice, 20 February 2010
  • Judgment (Merits and Just Satisfaction) of the Court (Fourth Section), 14 January 2014

Ramzy v the Netherlands, Application No. 25424/05

  • Written comments by Amnesty International and six others, 22 November 2005
  • Judgment (Struck out of the List) of the Court (Third Section), 20 July 2010

BAYATYAN V. ARMENIA, APPLICATION NO. 23459/03

  • Written comments submitted by Amnesty International, Conscience and Peace Tax International, Friends World Committee for Consultation (Quakers), International Commission of Jurists, War Resisters’ International, Index POL 31/001/2010, 15 July 2010
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 7 July 2011

Tahsin Acar v Turkey, application no. 26307/95

  • Written submissions on behalf of Amnesty International [not available]
  • Judgment (Preliminary Objection) of the Court (Grand Chamber), 6 May 2003

Assenov and Others v Bulgaria, application no. 24760/94

  • Written comments on behalf of Amnesty International, 13 February 1998 [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Chamber), 28 October 1998

Kurt v Turkey, application no. 24276/94

  • Written submissions on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Chamber), 25 May 1998

AYDIN V TURKEY, APPLICATION NO.23178/94

  • Written submissions on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 25 September 1997

Chahal v the United Kingdom, Application no. 22414/93

Akdivar and Others v Turkey, Application No. 21893/93

  • Written submissions on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber) 16 September 1996

McCann and others v the United Kingdom, application no.18984/91

John Murray v the United Kingdom, application no. 18731/91

  • Written comments on behalf of Amnesty International and Justice [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 8 February 1996

Brannigan and McBride v the United Kingdom, application nos. 14553/89 and 14554/89

  • Written comments on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Plenary), 26 May 1993

Soering v United Kingdom, Application No. 14038/88

  • Written comments on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Plenary), 7 July 1989

Extraordinary Chambers in the Courts of Cambodia

Case No.: 002/19-09-2007-ECCC-OCIJ-PTC

Inter-American Commission on Human Rights

Paloma Angélica Escobar Ledezma and others v Mexico, case 12.551

  • Amicus curiae brief on behalf of Amnesty International, 10 July 2007 [not available]
  • Report No. 51/13, 12 July 2013

Hul’qumi’num Treaty Group v. Canada, Petition 592-07

Luis Gabriel Caldas León v Colombia, case 11.596

  • Amicus curiae brief on behalf of Amnesty International [not available]
  • Report No. 137/10, 23 November 2010

Inter-American Court of Human Rights, contentious cases

Mendoza et al. v. Argentina

  • Amicus curiae brief presented by Amnesty International [not available]
  • Judgment of 14 May 2013 (Preliminary Objections, Merits and Reparations), Series C No. 260

Karen Atala Riffo and daughters v Chile (Case 12.502)

  • Amici curiae brief presented by Amnesty International and fifteen others, 8 September 2011
  • Judgment of 24 February 2012 (Merits, Reparations and Costs), Series C No. 239

Radilla Pacheco v. Mexico

González et al. (“Cotton Field”) v. Mexico

  • Amici curiae brief in support of petitioners presented by Amnesty International and others, 7 July 2009
  • Judgment of 16 November 2009 (Preliminary Objection, Merits, Reparations and Costs), Series C No. 205

Ronald Ernesto Raxcacó Reyes v Guatemala

Cayara v. Peru

  • Amnesty International joined Americas Watch as co-complainant in the case before the Inter-American Commission on Human Rights
  • Judgment of the Court (Preliminary Objections), 3 February 1993, Series C No. 14

Fairen-Garbi and Solis-Corrales v Honduras

  • Brief of Amnesty International as amicus curiae, 7 January 1988 [not available]
  • Judgment of the Court (Merits), 15 March 1989, Series C No. 6

Godinez-Cruz v Honduras

  • Brief of Amnesty International as amicus curiae, 7 January 1988 [not available]
  • Judgment of the Court (Merits), 20 January 1989, Series C No. 5

Velasquez-Rodriguez v Honduras

  • Brief of Amnesty International as amicus curiae, 7 January 1988 [not available]
  • Judgment of the Court (Merits), 29 July 1988, Series C No. 4

Inter-American Court of Human Rights, Advisory Opinions

Request of Advisory Opinion submitted by the State of Panama

  • Request of Advisory Opinion submitted by the State of Panama, 28 April 2014
  • Written observations by Amnesty International submitted pursuant to Article 73(3) of the Rules of Procedure of the Inter-American Court of Human Rights, 30 March 2015

Legislative measures concerning the mandatory imposition of the death penalty and related matters

  • Request of Advisory Opinion presented by the Inter-American Commission of Human Rights, 20 April 2004
  • Written observations presented by Amnesty International, Index IOR 62/005/2004, 8 December 2004
  • Order of the Court, 24 June 2005 (Spanish only)

The Right to Information on Consular Assistance in the Framework of the Guarantees of the due Process of Law

  • Brief of Amnesty International as amicus curiae [not available]
  • Advisory Opinion OC-16/99 of 1 October 1999, Series A No.16

Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human Rights)

International Court of Justice

Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)

International Criminal Court

The Prosecutor v Jean-Pierre Bemba Gombo, case no. ICC-01/05 -01/08

  • Amnesty International’s Application for leave to submit amicus curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence, no. ICC-01/05-01/08-399, 6 April 2009
  • Decision on Application for leave to submit amicus curiae observations
    pursuant to Rule 103 of the Rules of Procedure and Evidence of the Pre-Trial Chamber II, no. ICC-01/05-01/08-401, 9 April 2009
  • Amnesty International’s Amicus curiae observations on superior responsibility, No. ICC-01/05-01/08-406, 20 April 2009

Special Court for Sierra Leone

Prosecutor v. Brima et al., Case No.SCSL-2004-16-AR73

  • Order of the Appeals Chamber on the appointment of amicus curiae, 2 December 2005
  • Corrigendum to the Order of the Appeals Chamber on the appointment of amicus curiae, 2 December 2005
  • Amicus curiae brief of Amnesty International concerning the public interest information privilege, 16 December 2005
  • Decision of the Appeals Chamber on Prosecution appeal against Decision on oral application for witness TF1-150 to testify without being compelled to answer questions on grounds of confidentiality
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M, or how the UK can fail victims of trafficking and forced labour

The Appellant in this case requested that there be no reporting of any details that could identify her or her former employers, even though they have already been used in the public domain in the past. In this article, she is identified as M. and the respondent is identified as Mrs A.

The story, as reported by the Employment Tribunal which later heard the case, is unfortunately common. M., a Nigerian girl in her early teens, had been working as a domestic worker for two years when she was offered the opportunity to travel to the United Kingdom to look after the A. family’s children. She was promised that she would be paid £50 a month and attend school in the UK. She accepted the offer, especially as she wanted the opportunity to go to school. To get a visa and a passport, she told the authorities that she was planning to visit her grandmother, lying about her name and age.

M. lived with the A. family about one and a half year, during which she looked after three young children aged 5, 4 and 3, feeding, cleaning and dressing them, as well as cleaning the house and washing the dishes. Contrary to what she had been promised, she was not paid for her work and did not go to school. She suffered serious physical abuse and it is unclear whether she ever left the house alone.

In the words of the Employment Tribunal, M.’s irregular migration status in the UK gave the A. family “power and control over [her] by threatening that if she was noticed by the authorities then she would likely be imprisoned”. When M. was found in a supermarket car park, after having finally been thrown out of the house, she was afraid of the police and very worried about what might happen to her because of her migration status.

Trafficking for labour exploitation

M.’s case seems to fall squarely within the UK definition of trafficking. According to the Employment Tribunal, M.’s arrival in the UK was arranged by the A. family. Once in the UK, she was reportedly subjected to both threats and deception to induce her to work. Her young age and lack of resources, friends and family in the UK increased her vulnerability and dependence in her relationship with the A. family.

In fact, there are remarkable similarities between M.’s case and the 2005 case of Siliadin v. France, in which the European Court of Human Rights found that a Togolese girl was held in servitude in violation of Article 4 of the European Convention on Human Rights (ECHR).

The presence of indicators of trafficking for labour exploitation and domestic servitude should have pushed the UK authorities to start a criminal investigation into M.’s case, as required under international human rights law (see: ECtHR, C.N. v The United Kingdom, judgment, para69). Instead, there is no mention of criminal investigations into M.’s complaints in the Employment Tribunal’s decision.

In view of the gravity of the crimes possibly suffered by M., the silence of the Employment Tribunal on the trafficking and labour exploitation aspects of her case is deafening. The Tribunal found that M. performed “a function similar to that of an au pair”, ignoring that she was underage, unpaid, in an irregular migration status and not allowed to pursue education.

Of course, it can be argued that it is not for an Employment Tribunal to consider the criminal aspects of a case before it. Let’s consider, then, what should have been the Tribunal’s main concern: compensation.

 No compensation for irregular migrants?

Article 13 of the European Convention on Human Rights guarantees the right to an effective remedy to all those whose rights under the Convention are violated. A specific right to compensation and legal redress for victims of trafficking is guaranteed, among others, under Article 15.3 and 15.4 of the Council of Europe Convention on Action against Trafficking in Human Beings, which the UK ratified in December 2008.

Despite these obligations, the Employment Tribunal held that, as M. knew that she was not legally allowed to work in the UK, her contract of employment was illegal, with the result that she could not bring claims for unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay. The Tribunal applied what is known as “illegality doctrine” or “illegality defence”, whereby courts can refuse to enforce obligations arising from an illegal deal.

Acknowledging that M.’s case was “probably one of the saddest case that has come before this Tribunal”, however, the Employment Tribunal decided that her dismissal was an act of unlawful direct racial discrimination and awarded her £6,000 for injury to feelings. These findings were initially confirmed in appeal. The Court of Appeal (Civil Division), on the other hand, applied again the “illegality defence” to reject M.’s claim and refuse any compensation.

The “illegality defence” and human rights

The Court of Appeal’s decision is currently under review before the UK Supreme Court. Unless it is quashed, irregular migrant workers who are victims of labour exploitation, trafficking for labour exploitation, servitude and slavery would be unable to obtain compensation from UK employment courts on either contractual or discrimination grounds.

In a 2009 consultation paper on The Illegality Defence, the UK Law Commission recommended that the courts should apply the “illegality defence” only after a consideration of when this is justified on the basis of the policies that underlie it, including “furthering the purpose of the rule which the illegal conduct has infringed” (para 8.3). In the case of individuals in an irregular migration situation, the purpose of the rule infringed would be the regulation of migration flows. While this is a legitimate purpose, states’ discretion in the adoption and enforcement of migration policies is limited by their obligations under international human rights law.

As the Law Commission itself put it,

“any national rules on illegality must comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as incorporated into UK domestic legislation by the Human Rights Act 1988” (para 3.90).

In particular

“if, and to the extent that [the application of the illegality defence in a contractual context] might [infringe any rights protected by the ECHR], it is quite clear that the defence would have to be applied flexibly in order to satisfy the requirement of legitimacy and proportionality” (para 3.95).

In M.’s case, as well as in all other cases of labour exploitation and trafficking of irregular migrant workers, national rules on illegality should not apply when their application would result in a violation of the right to remedy under Article 13 of the ECHR. The irregular status of migrant workers who become victims of trafficking and exploitation cannot stop them from obtaining justice from UK courts.

How to cite this article:

Francesca Pizzutelli, “M., or how the UK can fail victims of trafficking and forced labour”, The Rights Angle, https://therightsangle.wordpress.com/, 5 April 2013.