Joshua Diskin, 2L
Contributor
Law students love to point out cases that stand for propositions that are blatantly outdated or offensive. Professors retain the task of conveying to students how arduous it can be to update those troubled areas of law. For four years, students in the Human Rights and Genocide Clinic, under the leadership of Director Sheri Rosenberg, have committed themselves to just such a case for which they are finally about to receive a long-awaited decision.
The facts and issues of the case are fairly straightforward. After the brutal ethnic and religious conflict in the 1990’s, the Bosnian Herzegovinan (BiH) political society enacted a constitution, under the guidance of the General Framework Agreement for Peace in Bosnia and Herzegovina. The constitution contains an exclusionary provision that only allows Serbs, Croats and Bosnians to run for the highest levels of political office. Meanwhile, Jakob Finci, the Jewish plaintiff, wants to run for political office in Bosnia but cannot do so because of the BiH constitutional provision. The reason for the exclusionary provision was to create a power-sharing arrangement amongst the ethnic factions to limit further conflict. However, Prof. Rosenberg contends, the exclusion of minority groups from running for higher levels of office in BiH constitutes outright discrimination for which there is no legitimate legal justification.
The process by which this case came to fruition is a much longer story. Prof. Rosenberg lived in Bosnia from 2000 until 2002, and became aware of Mr. Finci’s situation while working for the State Department there. She returned to the U.S. and continued to strategize about how to get involved, meanwhile directing Cardozo’s program in Holocaust and Human Rights Studies. Eventually, a London-based NGO called Minority Rights Group International approached Prof. Rosenberg to ask for her help with Mr. Finci’s case. “I was certainly interested,” said Rosenberg. “We took it on as a clinic project in 2005 and the … goal was to argue the case before the European Court of Human Rights.”
First, the clinic conducted research on all the possible domestic and international remedies. Then, in 2006, Prof. Rosenberg convened a meeting in Sarajevo with local stakeholders, including heads of various minority groups, NGOs and other relevant actors, to see how they wanted to approach the issue. Prof. Rosenberg explained, “We understood that the problem needed to come from them and not the clinic. With that said, they were very much in favor of the clinics’ approach.”
Prof. Rosenberg and her students then wrote two shadow reports (analogous to amicus briefs under the UN system) to two UN treaty bodies in order to review Bosnia’s compliance under their respective treaties. After reviewing the reports, both committees put in recommendations that Bosnia remedy its law. The clinic then used the remarks made in the recommendations in its application to the European Court of Human Rights and the Court accepted the case. Prof. Rosenberg described with excitement, “The clinic was really excited about this because the process … worked the way they wanted it to from start to finish.”
Prof. Rosenberg, who took two of her students along for the ride, left this past summer to argue the case in Strasbourg, France. Ari Brochin, 3L, was one of the students. “Before we left, we researched the judges and standards and we were working on answering the interrogatories,” he said. “In Strassburg, we would sit in cafes with Prof. Rosenberg and comment on her arguments. It was a great experience.” For Prof. Rosenberg, arguing the case in front of the European Court was different from anything to which she was accustomed as a former litigator. “It’s a different style from arguing in US courts. There was a kind of European formality,” she explained. “The style of argument was different and I had to attune myself to the styles of the court. Argumentation in the US is fairly aggressive. In Europe, it’s very polite. Although I didn’t want to be too American, I did want to impassion the court to my cause, which is an American flavor.”
By now, the European Court of Human Rights has likely issued its decision. But regardless of the outcome, Prof. Rosenberg and the Human Rights and Genocide Clinic have already offered the rest of our school a valuable educational lesson: the moral convictions that students express in the classroom have the potential to yield meaningful results.