Framework for Access to Justice via Strategic Litigation
摘要
Strategic actors operate within the framework of the current legal and political system. Actors are thus faced with obstacles and challenges in order to be able to facilitate access to justice and a strategic impact. Therefore, they must conform with, and fulfill, the prerequisites of the respective legal system, in particular, procedural law. In this chapter, German procedural law will be examined regarding its pathways to justice for strategic litigation in general and specifically regarding IHL arguments. An overview of ongoing and past transnational strategic cases and their respective procedural prerequisites will be given. This will be done first with constitutional complaints and fundamental rights cases, then with legal action before administrative courts. Following this, there will be a short discussion of procedural preconditions regarding criminal lawCriminal Law and a brief analysis of civil lawCivil Law procedures. Next, the European and the international legal frameworks will be examined for their potential use in strategic litigation. Besides procedural law, the framework in which strategic litigants operate is also coined by institutional, political, socio-economic as well as factual prerequisites and challenges. After an analysis of these factors, the chapter concludes with a summary of the analyzed framework of strategic litigation.