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The potential of strategic litigation

June 4, 2019

Securing individual prosecutions of traffickers or employers who profit from the exploitation of their workers is essential. As an isolated strategy, however, this is unlikely to cause a disruption in the underlying systems that enable modern slavery to persist. Strategic litigation looks at the bigger picture by pursuing cases that have the potential to set important precedents, influence policy and ensure that governments are carrying out their responsibilities. Despite its potential, strategic litigation is an approach rarely pursued by grassroots organisations. High-risk and resource-intensive, strategic cases require specific legal expertise and often span many years, with no guarantee of securing a positive outcome for the plaintiffs.

Thailand is the only Freedom Fund hotspot program that currently supports strategic litigation. Our frontline partners Human Rights and Development Fund (HRDF) and Social Responsibility Law are spearheading efforts to pursue strategic cases to secure and improve legal protections for migrant workers in the Thai seafood industry. In particular, HRDF was instrumental in the prosecution of the landmark Kantang case. This case set two important precedents: it recognised debt as an element of forced labour and held that forced labour cases involving the use of violence and intimidation could be construed as human trafficking under Thai law. Kantang was also the first human trafficking case in Thailand that secured full indemnification for the plaintiffs. Nevertheless, the continued challenge faced by HRDF in ensuring that the plaintiffs receive the money awarded exemplifies the considerable barriers to justice faced by victims of human trafficking in Thailand. Moreover, failure to secure positive judgments in other strategic cases – for example in the Ranong case, in which the court refused to believe the plaintiffs’ allegations of working 22 hours per day for 13 months – demonstrates the high-risk nature of this type of litigation.

Increasingly, we are seeking to identify ways to help grassroots organisations carry out strategic litigation in other Freedom Fund hotspots. One potential approach is supporting the development of a case pipeline, whereby frontline organisations are trained to identify potential strategic cases, which can then be referred to other NGOs or lawyers that have specific expertise in this area. Developing a network of lawyers engaged in strategic litigation, either nationally or regionally, could also encourage the emergence of a community of practice to share best practice in this area.

Find out more about how frontline organisations are harnessing the power of the law to fight modern slavery in the Freedom Fund’s new report, “Pathways to Justice“.

Photo credit: Lisa Kristine/Freedom Fund

Written by
The Freedom Fund