There are projects in some jurisdictions – including China, Brazil, and Argentina – as to how these technologies could be employed in the judicial decision-making process to reduce case backlogs and enhance the delivery of justice. Contrarily, some countries – such as the UK, Ireland, New Zealand, and Canada – have taken an opposing stance to prevent the adoption of LLMs in core judicial functions, including determination and adjudication. Instead, they permit LLMs as support tools for judges and court staff to perform routine work like summarising text, speech writing, searching for information, sources, and precedents, enhancing clarity and linguistic flourish, translating, and transcribing.

However, such ‘innocent’ use of LLM tools in routine or secondary court functions has the potential to influence judicial cognition and thereby affect the core judicial decision-making process. Institutional permission and repetitive use of these tools may lead to several cognitive effects, such as automation bias, cognitive offloading, anchoring, and the framing effect. Automation bias leads to over-reliance on automated recommendations, while cognitive offloading reduces mental effort through external tools. Anchoring causes over-dependence on initial information, and the framing effect shows how decision-making shifts based on information presentation.

Judging involves reading the case materials, identifying the issues, and developing the reasons by themselves, whereas a preliminary recommendation produced by an LLM system has the potential to serve as a starting point for such cognitive involvement of judges, anchoring the point of departure. On the other hand, when a judge outsources the meaning of legal lexicon, a summary of long texts, or the identification of precedents to an LLM, they ultimately engage in cognitive offloading. This cognitive offloading can lead to a superficial review process where judges make only ‘surface-level’ scrutiny or modifications to LLM-generated text, bypassing the deep cognitive work required to fully understand the legal reasoning and verdict.

Therefore, simply relying on a human judge to use LLM systems in preparatory stages, or to audit the veracity of the outcomes of such systems subsequently in the judicial decision-making process, is potentially problematic. Though judges are trained to be impartial, cognitive and behavioural science demonstrates that no decision-maker is immune to systematic cognitive biases. Decades of behavioural research demonstrate that professional expertise does not eliminate susceptibility to anchoring, framing, or automation bias. Judges, like other professionals, work within cognitive constraints.

These cognitive defects are significant because human judges are regarded as the principal safeguard to check and control any type of bias and are also regarded as neutral decision-makers to ensure justice. In the circumstances of heavy judicial workloads, exhaustion, and in some cases institutional pressure to deliver timely decisions with limited resources, cognitive issues can arise. As a result, it can undermine the fundamental principles of fair trial, including judicial independence, the judicial duty to provide well-reasoned decisions, and ultimately the rule of law.

The inherent persuasive features of LLMs that randomly generate text with human-like reasoning and confidence, in spite of factual or legal accuracy, may make human judges vulnerable to this uncritical adoption of LLMs even as a support tool for judicial decision-making. This creates a deep tension with the fundamental and uncompressible judicial duty of independent reasoning, signifying that without precise safeguards and a deep understanding of this cognitive susceptibility, the integration of LLMs in adjudication, even as secondary tools, could unintentionally undermine the deliberative process it seeks to augment. Hence, in an increasingly technology-driven judiciary, it is critical to examine whether judges’ cognitive limitations prevent them from effectively guarding against aggravating this tension.

Globally, women perform 76.2% of unpaid care work and in Latin America, they spend three times more time on such work than men. The primary reason behind this disproportionate burden is the gender-based division of labour rooted in social and cultural norms, which compels women and girls to care for others ‘naturally’ and without expectation of compensation or recognition. This form of labour, which is indispensable to social wealth and reproduction, is largely invisible and hinders women’s full participation in the market as equals with autonomy. The court recognised this disparity as a source of structural gender inequality that needs urgent state action, through legal and policy measures.

This blog examines the judgment through a feminist lens, looking at women’s long history of performing invisible labour through care work.

The Advisory Opinion

The Court granted the right to care the designation of an autonomous human right derived from the American Convention on Human Rights. It drew on multiple human rights standards relating to equality and non-discrimination, health, social security, education and fair and equitable working conditions, as enshrined in universal and regional human rights instruments as well as ILO Conventions. The opinion has successfully brought care out of the private sphere and affirmed it as labour with immense social and economic value. This reasoning has been shaped by submissions and advocacy from feminist and human rights organisations across the region who have tirelessly worked for this recognition, which is groundbreaking on multiple counts.

Firstly, the Court categorised care as a basic universal need essential for human life and societal functioning, ensuring minimum conditions for dignity- especially for people in situations of vulnerability, dependence or limitation. Further, it held that the foundation and scope of the right are closely linked to the principles of social and family co-responsibility and solidarity. This affirmation reshapes care as a collective responsibility between families, communities, businesses and governments, rather than a burden only borne by women.

Secondly, the decision took an intersectional approach, recognising multiple factors such as poverty, migration, age and gender that influence the inequitable distribution of unpaid care work and perpetuate discrimination. In this regard, the Court stipulated that national laws and policies on care work must prevent disparities in its performance and receipt, particularly between men and women. This recognition of intersectional discrimination addresses a key gap in care policy and legal reform, which often universalise women’s experiences and neglect interlinked social identities that compound inequalities

Lastly, whilst establishing the interdependence of the rights to health and care, the Court acknowledged the close relationship between reproductive and sexual health and the right to self-care. It held that States must provide access to accurate and timely information and services on reproductive health to all people who can become pregnant- including women, transgender people and non-binary people; thus enabling people to make free and informed decisions about motherhood and care.

The decision is the first of its kind and could mark a turning point, particularly for women and care workers in the Americas- who have performed far too much labour with too little reward or recognition. Even as an advisory opinion, it carries significant persuasive value and is likely to inspire strategic litigation and policy development in the region. However, it remains to be seen how much concrete change the decision brings about, through ground realities such as decent wages, social-protection schemes, improved working conditions.

Overall, the opinion is a marked step forward for dismantling the sexual division of labour and recognising the essential value of care work. The real impact, however, will depend on whether States use this recognition to transform structural inequalities within care work.

‘Femicide’, a term used to describe the killing of a woman by a man due to her gender, was first coined and then popularised to account for the serious rise in discrimination and violence against women, specifically in Latin America and the Caribbean. A 2016 survey found that 14 of the 25 countries with the highest femicide rate worldwide were found in this region.* In Latin America, femicide is perpetuated by both social and systemic factors, including a prevailing culture of male dominance and a significant level of impunity that provides no justice to victims. While countries in Latin America work to address this epidemic through their legal framework, they continue to misrepresent the issue, fail to account for the intersectionality of identities, and overlook the resources and protections needed for all vulnerable communities.

Latin American efforts to combat femicide include 16 countries having specific legislation on femicide and the adoption of the UN Latin American Model Protocol for investigating gender-related killings of women. For example, Mexico penalises femicide with 45-65 years imprisonment, while aggravated homicide faces 30-60 years. In 2016, Peru created a national plan against gender-based violence, establishing several specialised task forces working toward femicide reduction and prosecution, emergency centres for women, hotlines for victims, and specialised police squads. Despite this progress, further advancement is needed.

The limitations of such legal frameworks include the misrepresentation of femicide terminology, including varying definitions and inconsistent use. For example, in Mexico, the subnational state of Mexico requires the victim to demonstrate signs of sexual assault and/or mutilation, or have experienced abuse in order to be considered femicide. Meanwhile, in the state of Chihuahua, the law does not differentiate the murders of women and other homicide. Additionally, Chile and Nicaragua do not use the term ‘femicide’ if the victim did not have a relationship with the perpetrator. This misrepresentation of femicide hinders accurate reporting and understanding of the issue and perpetuates a culture that fails to address the systemic roots of gender-based violence in order to provide its victims with the support they need.

The current legal framework around femicide also fails to provide resources and protection for marginalised communities that face greater risks. For indigenous women, the intersectionality of their identity, such as race and gender, exposes them to multiple levels of discrimination and violence. Furthermore, victims of violence who live in poverty have a greater struggle finding resources for their safety. Contributing to this limitation, the current legal framework fails to account for the femicide of transgender women, who across Latin America, do not live past the age of 35 on average due to their lack of rights and protection in the face of extreme violence. This, coupled with the extremely low rates of convictions for the few femicide cases that have been investigated, has led to the creation of more vulnerable victims.

While Latin America continues to see a rise in the rates of femicide, the figures do not include the victims of femicide that still go uncounted for due to national variation in criminal justice recording and investigation practices. The current legal framework remains inconsistent in its attempts to stop the growth of femicide and fails to address the unique vulnerabilities of marginalised women, leaving them disproportionately exposed to the horrors of femicide with insufficient protection and resources. Significant steps and collaborative efforts are essential to evoke the much-needed change in addressing and preventing femicide in Latin America. Awareness campaigns of femicide are imperative as legislation in these nations continues to develop, and advocacy for the intersectionality of identities is crucial to ensuring all vulnerable victims of this violence are represented and protected.

*This is the most recent survey available. Overall, this exemplifies a further issue surrounding femicide, which is the lack of up-to-date data.

Want to learn more?:

• Linguistic Cracks in The Femicide Campaigns: Why Femicide Must Be Repatriated
• Velásquez Paiz et al v Guatemala: Gender Stereotypes and Lack of Justice – Part I and Velásquez Paiz et al v Guatemala: Femicide in Guatemala – Part II
• López Soto v Venezuela: The Inter-American Court of Human Rights’ answer to violence against women

In Duarte Agostinho, six children and young people, all residing in Portugal, filed an action against Portugal and 32 other States for their joint failure to cut greenhouse gas emissions in line with the 2015 Paris Agreement. They argue that climate change effects, such as wildfires, impacted their physical and mental health; their right to life; and, as children will disproportionately suffer from climate change effects over the course of their lifetime, their right to non-discrimination. In its communication to the parties, the Court also asked whether the prohibition of ill-treatment and the right to property were violated. Before addressing the merits of the case, the Court will likely examine in detail the issues of extra-territorial jurisdiction and exhaustion of domestic remedies.

Extra-territorial jurisdiction for climate harm

The applicants argue that the 32 States (in addition to Portugal, which exercises territorial jurisdiction) exercise extra-territorial jurisdiction, since they cause climate impacts abroad. The Court may adopt a nuanced approach to extra-territoriality tailored to climate cases, drawing inspiration from the Inter-American Court of Human Rights (IACtHR), which developed such standards in its Advisory Opinion OC-23/17, requiring a causal link between the human rights violation committed abroad and the acts in the territory of the State of origin. Recently, the United Nations Committee on the Rights of the Child (CRC) applied this standard in Sacchi et al., v Argentina, and held that the respondent States had jurisdiction over transboundary climate harm, although some applicants lived outside their territorial boundaries. While this rather broad interpretation could possibly extend jurisdiction to harm unrelated to climate change, some kind of causality-based jurisdiction standard makes sense for climate cases, considering their transboundary nature. The Duarte Agostinho case thus presents an opportunity for the ECtHR to clarify the scope of extra-territorial jurisdiction for climate harm.

Exhaustion of domestic remedies

Unlike the two climate cases already heard by the Court, the Duarte Agostinho applicants have not exhausted domestic remedies in any of the 33 States. They argue that as children and youth they face financial and other barriers to access grievance mechanisms and that domestic courts would not respond in time to meet the 1.5°C target set out in the 2015 Paris Agreement. In contrast to the Swiss case, which was also brought by an association that could offset some of the presumably high legal costs, the Duarte Agostinho applicants argued their case in their individual capacities (with the help of the Global Legal Action Network, GLAN).

As such, the Court will need to carefully examine whether an exception to the rule of exhaustion of domestic remedies applies. In principle, applicants must bring their case before all domestic courts to enable them to review their complaints. In certain circumstances, applicants may be exempt from this requirement, such as when doing so would be unreasonable or impose a disproportionate burden. In examining this case, the Court might scrutinise—as the CRC did in Sacchi et al., rejecting the case precisely for non-exhaustion of domestic remedies—whether and to what extent, if at all, the applicants could have pursued remedies in Portugal and the 32 other States. The Court might also consider the availability and efficiency of the remedies and the length of the proceedings in the different States. Finally, it may exceptionally accept barriers of access to justice faced by groups especially vulnerable to climate change impacts, such as children. The Court’s finding in relation to each of these factors has significant implications for the ability to challenge future climate harms in international dispute forums on the grounds of human rights violations.

Want to learn more?

• Read: The Paris Agreement as a Human Rights Treaty: PSB et al. v Brazil 
• Read: Another ‘Green Reading’ of Article 8 of the ECHR in Pavolv & Ors v Russia
• Read: Appraising the Limitations of Linking Climate Reparations to Human Rights
• Listen: Christina Voigt on ecocide
• Read: What do Rivers have to do with Human Rights? A Spotlight on Recent Problems
• Read: Challenging Regression in Climate Commitments: Doctrine of ‘Non-Retrogression’ to the Rescue?

International and regional law: Developing a right to self-determined gender identity

The notion of self-determined gender identity has received widespread global support over the past two decades. Under frameworks for the recognition of legal gender identity, a few States have shifted from medico-legal criteria for recognition to those based on an individual’s self-determined gender identity. This is in line with the groundbreaking Yogyakarta Principles (YPs), a set of soft international law principles that have had a significant impact on legal gender recognition reform. Under the YPs, the recognition of gender identity is based on an individual’s internal and individual experience of gender. Importantly, it emphasises their personal sense of their body, which may or may not involve modification of bodily appearance.

The right to self-determined gender identity has also been considered by regional human rights courts. In a 2017 Advisory Opinion, the Inter-American Court recognised the right to a self-determined gender identity under the American Convention on Human Rights, emphasising that recognition should not be subject to medical certification or requirements.

Global trends

The right to legal gender identity is recognised in over 67 jurisdictions around the world. The ambit and extent of recognition differs from one jurisdiction to another.  In particular, the requirements for recognition vary considerably: the majority of States with gender recognition laws maintain the medico-legal approach. The current call to action instead highlights the barriers and human rights violations faced by transgender persons, which include access to healthcare, education, housing and participation in public life.

The cross-regional group led by Argentina comprises states as diverse as India, Greece, Ireland, Brazil and Uruguay. It also includes countries such as Malta and Australia which have some of the most progressive gender recognition laws. The Malta approach to gender recognition fully recognises the right to self-determined gender identity. Under Malta’s Gender Identity, Gender Expression and Sex Characteristics Act, individuals wishing to amend their legal gender identity are only required to make a declaration in front of a notary. They are not required to undertake any medical procedures, nor are they required to submit proof of any psychological or physical diagnosis such as gender dysphoria. In 2017, the Maltese government also introduced the possibility of an “X-marker” on ID cards and passports, thus signifying a shift away binary models (male-female) of gender classification.

The South African context

The cross-regional alliance provides an opportunity to reflect on the South African framework. South Africa’s Alteration of Sex Description and Sex Status Act of 2003 remains an example of pathologised gender identity. The Act requires medical diagnosis or certification and requires the alteration of sexual characteristics. These pathologised requirements are further compounded by the reported difficulties in accessing healthcare services and misinterpretations of the Act which have resulted in officials requesting proof of surgery, although this is not a statutory requirement.

Depathologising gender identity is firmly on the United Nations’ human rights agenda. The South African legislature needs to respond to the call made by the cross-regional group in order to better protect the rights of transgender South Africans. In doing so, this would set the foundation for improving access to healthcare services, education, housing and other socio-economic rights that remain unevenly distributed between cisgender and transgender populations.

Want to learn more?

• Read: The Forgotten I in LGBTQIA+: ECtHR Turns its Back on Intersex People
• Read: Kenya’s Landmark Supreme Court Decision on Non-Discrimination for Sexual Minorities
• Read: New Frontiers of LGBTQ+ Liberation
• Read: Hungarian Bill Obliterates Gender Recognition Rights
• Read: Welfare as a Human Right: An Intersectional Approach to Trans Rights in India

La Opinión Consultiva No. 29 (2022) se refirió por primera vez específicamente al concepto de violencia obstétrica, ejercida contra las mujeres embarazadas que se encuentran en condiciones de detención durante el parto, post-parto y lactancia. Se aplican los estándares de la Convención Belém de Pará en cuanto a las obligaciones de los estados de prevenir este tipo de violencia en el ámbito penitenciario, de garantizar el contacto de las mujeres en situación de parto con el personal de salud y con los familiares de manera sencilla y culturalmente aceptable, del acceso a la justicia como asimismo canales de denuncia. Sin embargo, debido a que estos estándares solo afectan a las mujeres detenidas, no atienden adecuadamente a la mayoría de las mujeres embarazadas.

Más recientemente, en el caso Brítez Arce vs Argentina (2022) la Corte finalmente profundizó el concepto de violencia obstétrica. Cristina Brítez Arce, embarazada de nueve meses, llegó al hospital en 1992 con molestias lumbares, fiebre y pérdida de líquidos por sus genitales. Se le realizó una ecografía que indicó que el feto había muerto, por lo que se realizó una inducción del parto. Cristina murió en el hospital unas horas después. Según el certificado de defunción, la víctima falleció ese mismo día debido a un paro cardiorrespiratorio no traumático. Sin embargo, pudo comprobarse que fue debido al tratamiento y diagnóstico negligente del hospital.

En base a estos hechos, la Corte sostuvo que los Estados tienen la obligación de brindar servicios de salud adecuados, especializados y diferenciados durante el embarazo y el parto en un plazo razonable, antes y después del parto, a fin de garantizar el derecho a la salud de la madre y prevenir la mortalidad materna (párr. 68 y ss.). Principalmente, señaló que el Estado tiene la obligación de garantizar el acceso a la información en salud, especialmente sobre salud reproductiva y materna durante todas las etapas del embarazo, la cual debe estar basada en evidencia científica, emitida sin prejuicios, libre de estereotipos y discriminaciones. Además, se debe acordar previamente un plan de parto con la institución de salud que atenderá el parto. Asimismo, el Estado debe garantizar el derecho al contacto materno-infantil (párr. 73 y ss.).

En suma, la Corte sostuvo que la violencia obstétrica, prohibida por diferentes instrumentos de derechos humanos, constiuye una forma de violencia de género ejercida por las personas encargadas de la atención de la salud sobre las mujeres embarazadas, durante el acceso a los servicios durante el embarazo, el parto y el postparto (párr. 75). Esto se manifiesta mayoritariamente, aunque no exclusivamente, en un trato deshumanizado, irrespetuoso, abusivo o negligente hacia las mujeres embarazadas; en la negativa de tratamiento e información completa sobre el estado de salud y los tratamientos adecuados; en intervenciones médicas forzadas o coaccionadas, y en la tendencia a patologizar los procesos reproductivos naturales. Tales manifestaciones en el contexto de la atención de la salud durante el embarazo, el parto y el puerperio tienen el potencial de poner en peligro la vida de las mujeres y violan inequívocamente las obligaciones del Estado en materia de derechos humanos (párr. 81). Los estándares establecidos por la Corte IDH en el caso Brítez Arce vs. Argentina son, por lo tanto, un paso positivo en la lucha para garantizar el derecho humano de las mujeres a vivir libres de violencia obstétrica.

¿Querer aprender más?

• Watch: Shaping the Future of Safe Childbirth
• Read: Obstetric Violence as a Violation of Human Rights: CEDAW’s Second Decision a Welcome Addition but Not Enough 
• Read: The Violence of Care: Obstetric Violence during Covid-19
• Read: Ockenden and Beyond: The Potential for a Human Rights Approach to Tackling Obstetric Violence
• Read: The Husband’s Stitch: A Violation of Patients’ Bodily Autonomy

Advisory Opinion No. 29 (2022) referred for the first time specifically to the concept of obstetric violence against pregnant women who are in conditions of detention during childbirth, postpartum and breastfeeding. The case applies the standards of the Belem do Pará Convention, addressing state obligations to prevent this type of violence in prison settings, to guarantee contact with health personnel and family members of women in labor (in a culturally acceptable manner), and to guarantee access to justice and adequate reporting channels. Yet because these standards only affect women in detention, they do not adequately cater to the majority of pregnant women.

More recently, in Brítez Arce v Argentina (2022) the Court seriously developed the concept of obstetric violence. Cristina Brítez Arce, who was nine months pregnant, arrived at hospital in 1992 with lumbar discomfort, fever, and fluid loss. An ultrasound was performed, which indicated a  dead fetus, for which she was admitted in order to induce labor. However, Cristina died in hospital a few hours later. According to the death certificate, the victim died due to non-traumatic cardiorespiratory arrest. However, it could be proven that it was due to the hospital’s negligent treatment and diagnosis.

On the basis of these facts, the Court held that states have the obligation to provide adequate, specialised, and differentiated health services during pregnancy and childbirth (within a reasonable period before and after childbirth), in order to guarantee the mother’s right to health and to maternal deaths [68]. Moreover, the state has an obligation to guarantee accessibility of health information, especially relating to reproductive and maternal health during all stages of pregnancy, and this must be evidence-based, issued without bias, and free of stereotypes and discrimination. In addition, a birth plan must be agreed in advance with the health facility that assists in the birth. The state must also guarantee the right to mother-child contact [73].

In sum, the Court held that obstetric violence is prohibited by numerous human rights instruments and constitutes a form of gender-based violence exercised by those in charge of health care of pregnant people, during access to services that take place during pregnancy, childbirth and postpartum [75]. It is typically – though not exclusively – illustrated by dehumanising, disrespectful, abusive or negligent treatment of pregnant women; the refusal of treatment or of complete information about the woman’s state of health and suitable treatments; forced or coerced medical interventions; and the tendency to pathologise natural reproductive processes. Such manifestations in the context of health care during pregnancy, childbirth and postpartum have the potential to endanger women’s lives, and unequivocally breach the state’s human rights obligations [81]. The IACoHR’s ruling in Brítez Arce v Argentina is therefore a welcome step forward in the fight to secure women’s human right to live free of obstetric violence.

Want to learn more?

• Watch: Shaping the Future of Safe Childbirth
• Read: Obstetric Violence as a Violation of Human Rights: CEDAW’s Second Decision a Welcome Addition but Not Enough 
• Read: The Violence of Care: Obstetric Violence during Covid-19
• Read: Ockenden and Beyond: The Potential for a Human Rights Approach to Tackling Obstetric Violence
• Read: The Husband’s Stitch: A Violation of Patients’ Bodily Autonomy

It is not news that Qatar, a country with serious human rights violations, was chosen to host this year’s World Cup. Migrant workers have been the most affected by the nation’s kafala system, with abuses, exploitation, injuries, and death, while the most vulnerable – including women and LGBTQ+ people – are subjected to verbal, physical, and sexual abuse. As the tournament comes to an end, the focus on the country’s workers must remain, as they will be essential to the dismantling of structures, such as temporary stadiums. Qatar is not solely the one to blame for a World Cup built on racial injustice. FIFA and its parameters for choosing a host country are also at fault: for years, regimes have used the World Cup to hide their human rights abuses, and they have been overtly ignored by the International Federation.

A number of major factors influenced FIFA’s decision and furthered Qatar’s bid to host the 2022 World Cup. Firstly, monarchies, dictatorships, and oligarchies are somewhat easier to conduct business with; as FIFA’s secretary general stated, “less democracies is sometimes better for organizing a World Cup…”. Other important factors included expanding football as a sport in the region, as well as lobbying. Qatar persistently lobbied the Executive Committee members in a way which western democracies were unable to equal, given that the difference between a bribe and a “gift” is more clearly proscribed. In addition, FIFA’s corruption and bribery scandal were mostly ignored by Qatar, unlike other countries which “insulted” the Federation. In comparison to other nations, Qatar allocated around $200 million in public funds for its bid, helping to secure its spot as a host.

Despite FIFA’s Guide ensuring that the organization is committed to diversity, mutual respect, and non-discrimination, the Federation continues to choose countries that directly contravene what their “Good Practice Guide advocates. During military dictatorships in Chile and Argentina, despite evidence of human rights atrocities, FIFA still moved forward with its plans to have the World Cup of 1974 in Chile and in Argentina in 1978. Chile’s regime used a national stadium as a concentration camp, and later FIFA chose that same stadium to host one of the major qualifying games. Regardless of the amount of scrutiny and backlash FIFA received during previous tournaments and its current host choice, the organization remains apathetic and pleads ignorance to numerous cases of abuse and human rights violations. Other issues that surround FIFA are the criteria in place for banning a country from participating in the Cup. Russia’s suspension from the World Cup was, nevertheless necessary, but opened a precedent that could apply to other situations. Yet, it was not until the Olympic Committee condemned Russia that FIFA decided to respond to it. In the past, FIFA had suspended countries in which governments interfered with their nations’ soccer federations, but not for human rights violations.

In spite of the issues surrounding Qatar during this World Cup, a somewhat positive take from the situation was the establishment of platforms put in place to discuss worker violations and kafala reforms, which benefited and protected (to some extent), the workers. These reforms could also influence surrounding countries to change. Additionally, the Cup in Qatar presents a series of opportunities to expand football into different nations, which could diversify economics, increase tourism, and enhance cooperation among countries in the Gulf. Still, changes in the selection system for host countries are critically needed.

Recommendations to FIFA include, firstly, the establishment of a governance system that sets ethical standards for host countries. This could not only incentivize host countries to provide positive and transformational change but would avoid benefiting countries with human rights violations and abuses. Secondly, FIFA ought to create and implement a select team that is responsible for ensuring that countries are adhering to existing rules and regulations before their commitment to host a World Cup. Finally, it must commit to and put forward a plan to compensate workers who were affected during their projects for the World Culp by matching the amount that Qatar has spent on their bid, as well as establishing and overseeing a donation fund that would go directly towards workers. Such responses would ensure that human rights abuses are not taken lightly, and that future World Cup hosts are abiding by the strict regulations put in place that certify that no rights of women, migrant workers, and LGBTQ+ people are being violated.

Want to learn more?

• Read: Need for human rights due diligence to curb sportswashing
• Read: In Unregulated Spaces: Empowering Female Migrant Workers from India

Background of the proceedings

The fact that the victims have been denied access to justice and reparations through the Spanish courts is directly related to a ruling of the Supreme court (Supreme Court Judgment no 101/2012), which prevented the enforcement of a previous Order of 2008 which  sought to initiate an investigation into alleged crimes committed during the Franco regime. The Supreme Court Judgment was based on three main arguments. First, the fact that the 1977 Amnesty Law is still in force. Second, the principle of legality and the prohibition of retroactivity, as it is alleged that these crimes were not codified at the time they were committed. Finally, that the crimes alleged were subject to limitation periods.

The ruling of the Supreme Court has been deemed to be contrary to core principles of international law by both practicing lawyers and academics, specifically because genocide and crimes against humanity are not subject to any limitation periods or amnesties. Additionally, several UN human rights bodies, including the Committee against Torture and the Human Rights Committee have raised concerns about the lack of compliance by Spain with their international obligations to provide truth, justice and reparations to victims. More recently, the Working Group on Enforced or Involuntary Disappearances has pointed out how the Amnesty Law and the Supreme Court’s decision contravene states’ obligations to ensure that perpetrators of enforced disappearances are prosecuted and sanctioned.

The lack of redress in the Spanish courts subsequently led victims and human rights associations to file a complaint in Argentina in relation to the international crimes committed during the Civil War and Spanish dictatorship (procedure No. 4.591/10 before the National Criminal and Correctional Court No.1 of Buenos Aires, also known as ‘the Argentine complaint’).

A gender perspective in the proceedings

On 16 March 2016, Women’s Link Worldwide presented a supplement to the criminal complaint in the Argentinian case, which concerned  sexual and gender-based violence crimes. One of the cases presented was on behalf of Francisca Alomar Jaume and Bartolomea María Riera Alomar, the respective daughter and granddaughter of Margalida Jaume and her husband, who were both victims of enforced disappearances in Mallorca in 1936; Margalida was seven months pregnant at the time she disappeared. In 2019, this case was also filed before the Human Rights Committee by TRIAL International and Women’s Link Worldwide, where it is likely to be discussed during the 130^th Session of the Human Rights Committee (October – November 2020).

Recent achievements

The proceedings in Argentina have been hampered by a lack of cooperation from the Spanish authorities in summoning witnesses, collecting testimonies, assisting in the examination of documents and taking statements from the accused parties. However, in the last two years, some progress has been made. In 2019, Francisca and Bartolomea finally had the opportunity to tell their story before a court in Mallorca, which, surprisingly, complied with the Argentinian letters rogatory. Also, recently the Public Prosecutor of Spain revoked an instruction issued by the former Public Prosecutor in 2016, which had ordered prosecutors in Spain not to comply with the Argentinian letters rogatory. The decision came just a few weeks before Mr. Martín Villa, a former Minister during the transitional period in Spain, was summoned to answer questions before the Argentinean courts.

The small steps Spain is taking to comply with its international obligations should be viewed with caution. Even though there have been proposals by the national government to reform and improve the current Historical Memory Act, there is a lack of any reference to an effective criminal investigation of the facts, which is not only crucial for upholding the right to justice, but also for fulfilling the obligation to search for disappeared persons and the enjoyment of the right to the truth and reparation. For people like Francisca and Bartolomea, to know what happened to their loved ones might be the only way for them to feel that justice has been served.

These decisions reflect flaws in Argentina’s pre-trial detention system. According to official statistics by the Ministry of Justice and Human Rights, in 2018 only 53.4% of prisoners had been sentenced. In a 2018 report, the federal authority that guards prisoners’ rights asserted that the use of pre-trial detention is ‘extended and systematic’ in the country. While this may take place in other jurisdictions, it is particularly severe in Argentina. Experts estimate that, worldwide, about a third of prisoners are in pre-trial detention.

This practice subverts the rationale for pre-trial detention—to safeguard proceedings by ensuring that defendants do not abscond or otherwise obstruct trials. In Romero Feris, the Inter-American Court stressed that these procedural risks must be grounded on specific facts and objective criteria, and cannot consist only of speculative or abstract claims. The seriousness of the alleged crime alone is not a sufficient justification for pre-trial detention.

Besides being unlawful, the overuse of pre-trial detention aggravates overcrowding and poor prison conditions, another serious problem in Argentina that was highlighted by the Inter-American Court in Hernández. The 2018 report quoted above warned that overcrowding—resulting from a constant increase in the number of prisoners—constitutes a grave violation of the State’s obligation to ensure adequate detention conditions. Last year, the Ministry of Justice and Human Rights issued an emergency alert concerning the prison system. In 2017, the Committee Against Torture had urged Argentina to ‘[r]edouble its efforts to reduce overcrowding in places of detention’.

Human rights NGOs argue that overuse of pre-trial detention is partly explained by delays in the criminal process. Pre-trial detention masks the State’s inability to sentence offenders within a reasonable time, giving the impression of a swift response to crime.

Argentina’s Supreme Court recently addressed the issue of delays in criminal proceedings. In December 2019, it ruled in Farina that an appeal that lasted over fourteen years exceeded all reasonableness standards. As the Court noted, this is a widespread problem. While experts agree that criminal proceedings in Argentina take excessive time, accurate and comprehensive statistics are lacking. Durations also vary significantly depending on the type of crime. Corruption cases, for example, last around fourteen years.

Naturally, reductions in the duration of criminal proceedings cannot be achieved at the expense of defendants’ rights to an adequate defence. Significantly, on the same day the Supreme Court ruled in Farina, it issued two other judgements upholding the right to a broad revision of criminal sentences on appeal, even when domestic law does not establish such a procedure. In P.S.M., it held, for the first time, that this right must be immediately granted by lower courts, without the need for each individual to obtain a ruling from the Supreme Court recognising it. Such a requirement may slow down appeal proceedings. In Rojas, the Court underscored that appeals courts must examine all aspects of a judgement that can be reviewed, that is, everything not exclusively pertaining to the oral trial, including how evidence was assessed. In Rojas,the Supreme Court reversed the sentence of two defendants who had been imprisoned for over fourteen and eleven years respectively, without a final judgement.

Hopefully, this series of emphatic rulings will lead to these interrelated issues being addressed on an urgent basis.