By Marie-Bénédicte Dembour, Ruwadzano Makumbe and Genaro Manrique
For 18 months now, the DISSECT research project has started to explore evidence in international human rights adjudication. Focusing on the interplay between truth, power and evidence, one of its core questions is how the judicial process tries to eliminate but keeps having to deal with factual uncertainty. In this first blog post, we share our initial thoughts on the complex dynamics of truth and evidence processing in human rights adjudication.
It may appear uncontroversial to state that legal adjudication always rests on establishing the truth of a number of allegations, both small and big.[1] It goes without saying that each party tries to convince the court of its truth. A failure on its part to convince the judge in this regard is likely to lead it to lose its case. Putting it so starkly implicitly recognises that the process of adjudication is not necessarily concerned with finding, as such, ‘the whole truth’. Rather, the aim of the judicial process is to bring a case to a close – with a winner and a loser – on the basis of what the judges have come to accept as the most probable (rather than ‘exact’) version of a number of relevant considerations.[2] Seen in this way, judicial truth seems to become a matter of objective (or inter-subjective) probability.[3] It certainly does not capture ‘everything’. This reality holds in particular for international human rights (IHR) adjudication. But it is disturbing, for isn’t one of the points of IHR adjudication precisely to indicate, and indeed establish, the truth of what has gone wrong? And if it does not do that, where does it leave the victims of human rights violations?
In order to start a discussion on these issues, we wish to make four basic points:
- Like judges in other legal fields, the IHR judge is not inclined to motivate its decisions regarding factual matters. Typically, only the conclusion of the reasoning is reported in the judgment, with statements for example taking the form of: ‘The Court is (not) convinced that …’; ‘It is (not) established that …’. Such pronouncements may make or break a case. Given the stakes involved, one could expect that the courts would explain why they accept or reject allegations as true. They hardly ever do this, however. The resulting lack of clarity (or perhaps even soundness of judgment) may then produce the impression of a disconnect between the judicial observations and the realities on the ground. In turn, this may lead to the paradox that many victims of human rights violations may be left feeling unrecognised and unprotected by human rights law, even when the court accepts to declare that there have been human rights violations.
- Truth is central to human rights. This is so much so that the right to truth is now widely recognised as an overarching right that affects the protection of other human rights. The right has a dual dimension.[4] The first is individual: the right of the victims and their families to know the truth regarding the events that caused serious violations of human rights, as well as the right to know the identity of those who have been participating in these. This triggers an obligation for states to investigate, prosecute and punish the perpetrators of human right violations. The second dimension is collective: the right to truth belongs not only to the victims and their family members, but also to society as a whole. For the Inter-American Court of Human Rights, this collective dimension derives from the inalienable right to know the truth about the past events which constitute human rights violations, including their circumstances and the motives behind them, so as to be in a position to prevent their repetition in the future. The Inter-American Court considers the right to truth as an autonomous right, which encompasses, among others, the rights to an effective remedy; to a fair trial and judicial protection; to a family life; to have an effective investigation; to be heard by a competent, independent and impartial tribunal; to obtain redress; to be free from torture and ill-treatment; and to seek and impart information.[5]Less explicitly, the right to truth has also been recognised by the European Court of Human Rights, which infers from the right to be free from torture or ill-treatment the rights to an effective remedy, to an effective investigation and to be informed of the investigation’s results.[6]
- It seems to go without saying that in affirming the right to truth, IHR law intends to speak of a truth which goes beyond the realm of a partial/probable judicial truth as presented above under point a). Surely, the purpose of the right to truth is to lead to having the real and comprehensive substance of the violations revealed. This, however, is easier said than done. As the round-table discussion on judicial truth DISSECT held with anthropologists Sandhya Fuchs and Jessica Greenberg made very clear, truth has many facets. Its scope and expression are based on the context and space within which it is being engaged. It is not simply objective but a construct of language, circumstances, discourses, and positions. In other words, everyone involved in human rights adjudication processes – including lawyers, practitioners and victims of human rights violations – cannot but provide a perspective-based truth which is shaped by their experiences and positionality. So, even if there is a real interest on the part of the court (or indeed the parties) to achieve the whole objective truth, it is difficult to think that what can be achieved goes beyond the ‘intimate conviction’ of what can be considered true.
- Having said this, truth is not entirely relative. Even if complete objectivity cannot be reached, there are nonetheless better and worse accounts.[7]In our research, we will have to pay close attention to the question of what kind of truth IHR adjudication is both being acted upon and producing.
Having all this in mind, the DISSECT research project seeks to bring some clarity as to the values that shape truth as a by-product of IHR adjudication. By dissecting various evidentiary issues arising in human rights adjudication, our aim is to understand the interplay between evidence, ‘truth’ and human rights accountability and protection. This blog will allow us to continue to share our developing insights with you.
[1] Here we have in mind especially factual issues, but not to the exclusivity of legal and normative issues, for we subscribe to the view that ‘the law’ and ‘the facts’ are not as clearly distinguishable as the language used by lawyers suggests. On this point, see e.g. El Boudouhi Saïda., L’élément factuel dans le contentieux international, Bruxelles: Bruylant, 2013. We also wish to note that the European Court of Human Rights’ insistence that it will normally refrain from reopening the facts established by the domestic authorities seems to indicate that matters of evidence would play a rather minor role in its jurisprudence. Later blog posts will address this point.
[2] Naqvi, Yasmin. “The Right to the Truth in International Law: Fact or Fiction?” International Review of the Red Cross 88, no. 862, 2006, pp. 245–273.
[3] Klamberg, Mark. “Epistemological Controversies and Evaluation of Evidence in International Criminal Trials” in Kevin Jon Heller, Frédéric Mégret, Sarah Nouwen, Jens David Ohlin and Darryl Robinson (eds.), The Oxford Handbook of International Criminal Law, Oxford: Oxford University Press, 2020, Chapter 19.
[4] Inter-American Commission of Human Rights. “The Right to Truth in the Americas”, OEA/Ser.L/V/II.152. Doc. 2, 13 August 2014, para. 13.
[5] Urrejola, Antonia and Tomás Pascual. “La incorporación del derecho a la verdad en el Sistema Interamericano de Derechos Humanos como derecho autónomo a partir de la desaparición forzada de personas” in Juana María Ibáñez Rivas, Rogelio Flores Pantoja and Jorge Padilla Cordero (coords.), Desaparición forzada en el Sistema Interamericano de Derechos Humanos, Mexico: Instituto Interamericano de Derechos Humanos, 2020, p. 117.
[6] See, inter alia, Judgment of 25 May 1998, Kurt v. Turkey, Application No. 24276/94; Judgment of 14 November 2000, Tas v. Turkey, Application No. 24396/94; and Judgment of 10 May 2001, Cyprus v. Turkey, Application No. 25781/94.
[7] Nicolson, Donald. “Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse” The Modern Law Review 57, no. 5, 1994, pp. 726–44.