By Ergün Cakal*
DISSECT hosted a two-day symposium on ‘Evidentiary regimes of UN Treaty Bodies’ (UNTBs) between 15-16 May 2023, at Ghent University. It brought together 20 participants who each presented and discussed a paper on research or practice around the use of evidence in different treaty bodies, upon the backdrop of the potentials and limitations of the system. You can see the programme of the symposium here.
‘Is the squeeze worth the juice?’ asked an active attendee, a UN insider. This was a rhetorical retort to persistent calls for the UNTBs to adopt more rigorous evidentiary practices despite their limitations. It gestured to what I’ve come to think of as ‘evidentiary expedience’, that evidence is often evaluated in a manner convenient and not necessarily most comprehensive by human rights adjudicators. Could common-sense, experience- or context-based reasoning convincingly speak for what happened in an individual case without a full-blown fact-finding expedition? The attendee’s quirky question distilled for me the essence of the considerations and tensions to have swirled around the room at this symposium which gathered scholars, past and current UN Treaty Bodies’ insiders, civil society observers and litigators, all well versed in the relevant acronyms and procedures. Various United Nations’ treaty bodies were within the scope of the discussions held, with CERD, CAT, HRC, CEDAW, and the special WGAD procedure, receiving special attention.[1] Friendly tussles ensued over how these avenues of redress ought to use their precious time. Much came to be viewed, as intended, through the prism of evidence – its practice, power and politics.
The reflections before you are offered as a partial record. Wary of monolithic takes, my aim here was merely to pull together the concerns and questions I noted over the two days – mostly as a PhD researcher seeking to make sense of the UN Committee Against Torture (CAT) and its evidentiary practices. So, far from claiming to be a rapporteur, I confess having paid particular attention to what seemed more relevant to my own project – which asks how human rights adjudicators at the CAT (as well as at the European and Inter-American human rights courts) imagine and evidence torture claims not involving physically-overt marks. More on that shortly.
Whilst it seemed easy to get trapped in common legalistic tropes (interpretation of rules of evidence, procedure and admissibility), these were deftly connected to broader historical, institutional and political frames. That is, papers and discussions were not simply descriptive operational user-guide presentations of strategies (though that too was there) but involved deeper dives to ask: how have we arrived at the system that we have, does it serve its users, if so, which users and how does it achieve this, and where do we see it going?
Thinking through current evidentiary practices in Geneva, as well as drawing on counterpoints operating elsewhere, participants were broad in their coverage of issues, often pitting factors against each other, tossing around the costs (the ‘squeeze’) and benefits (the ‘juice’) individual communications (also called petitions) produced. We discussed: time spent fact-finding impacting the volume of output (decisions and broader guidance); legalisation undercutting user-friendliness; political pragmatism displayed by the treaty body (in opting for diplomacy and dialogue) over jurisprudential coherence (and development); individual over systemic justice; gains and losses over foregrounding background factors; quantity over quality; depth over breadth; and so on.
At some point, I started to tally the well-worn currency used in exchanges. Shifting, sharing, proving, assessing, evaluating, corroborating, substantiating. Verbs seamlessly spunaround burdens, standards, presumptions, thresholds, onuses, testimony, experts, practices, patterns, contexts. As characterised and conditioned by imperatives of history, flexibility, fairness, victim-orientation, state-secrecy, state-deference, resources (time, word count, personnel; secretariat support), user demand, and the possibility for collaboration (between litigator, scholar, adjudicator, expert).
As an early-career scholar who often feels the pinch of loneliness, hearing one’s own concerns being echoed around the room and thus commonly shared was a comforting confirmation. I too had been thinking (more with instinct than insight) of similar questions: thin causal (or: casual) reasoning (i.e., the lack of clarity about how is different evidence weighed in reaching conclusions); the difficulties of comparison (how to qualifiedly compare court-like behaviour of UNTBs); the weight context (e.g., patterns of violence) lifts in findings of violations; the lack of continuity over compositions; and so on.
The CAT was an obvious case to think through. Its discretion to evaluate evidence and the forms it stands ready to admit is wide – from hearsay to forensic reports. It has also occasionally drawn in its individual decisions on its own observations in state reviews. Not all its members have been legally-trained (nor need to be). What all this means for its evaluation of evidence is unclear and open for some speculation. Much deliberation that takes place in CAT, my own research suggests, never makes it to the final CAT decisions – but remains important nevertheless to understand how this machine works. Here too, word limits and time pressures dictate the rigour of reasoning (present or absent) in decisions, conceivably leading to jumpy and superficial reasoning at times.
The presence of prominent anti-torture doctors and psychologists in CAT’s composition (Sørensen, Sveaass and Modvig), peppered over the years, has meant that it appeared well-equipped to evaluate the evidence of health impacts presented by petitioners. This has also shored up its authority in the eyes of its observers. Yet, committee work remains a collective and confidential enterprise. Membership can be geographically and culturally diverse, with many members operating without anti-torture expertise and experience. CAT’s current membership is composed of two anti-torture specialists (Racu and Puce), a former international criminal law judge (Tuzmukhamedov), a human rights generalist (Rouwane), four international law professors (Maeda, Liu, Buchwald, Touzé) and two retired career diplomats (Heller and Iscan). It is difficult to predict how certain allegations as corroborated by evidence (or not) land at the intersection of these minds.
Members also receive substantial support from the secretariat of the Office of the High Commissioner for Human Rights (OHCHR), notably in registering individual petitions and drafting decisions. In this regard, the secretariat could well see itself as CAT’s institutional memory and claim a degree of ownership over its operations. It stays while members are transient. Yet, the decision-making powers, ultimately, are in the hands of the CAT members and might not always align with that of its secretariat – which has an interest in jurisprudential coherence. How evidence is viewed and valued when this dynamic is added to the mix serves to add to the complexity. That said, trying conditions and testy collaboration risks undercutting institutional integrity which often hinges on transparency.
Assessing committee performance, including but looking beyond the CAT, demand that observers stay mindful of mentioned conditions of operation. As with the squeeze-juice equation, pleadings are usually pitched on grounds of what users and observers ought reasonably to expect these bodies to do given their conditions. While the critique of human rights courts is a well-established one (issues of legitimacy, authority, compliance and backlash being prominent concerns of scholarship), similar scholarly attention to UNTBs is relatively more recent, if I am not mistaken. It was instructive to observe the tone participants aimed to strike, between caution, correction and disavowal. Not mentioned explicitly though inferred were the self-perception of the UNTBs (as best invoked by UN insiders at the steering wheel): how they saw themselves, their work, caseload, priorities, their ambitions.
I can’t attribute a homogenous normative investment in correcting the system to all present. (Some explicitly stated they saw their academic task as explaining rather than influencing dynamics). That said, most participants constructively engaged with answering ‘what more can we do?’. Indeed, the symposium was bookended with an imperative for utility – a call to formulate forward-looking lessons and recommendations. As much as I am uneasy in readily, normatively engaging in my subject (as I am convinced that the law is not the answer, at least not completely), I find it difficult to draw a definitive line given how high the stakes clearly are for survivors of state violence in pursuit of redress. So, for me as others, trying to improve legal avenues when we understand where and how they are defective is ingrained as the most ready-made way to try to help survivors.
My own research interest in this area grew out of my time as a legal advisor at the Danish Institute Against Torture (Dignity) – a long-standing, research-based, human-rights-oriented NGO, with a rehabilitation clinic for torture survivors. I am no longer affiliated with Dignity and no longer consider myself a practitioner – but more as someone guided by the ethics of putting my research to good use. My current research problem originates from (and continues to resonate with) the practice of convincing decision-makers to better appreciate and address state violence. More specifically, the genesis of my project was the need to improve medico-legal documentation of practices which do not leave physical marks (think threats, sleep deprivation and solitary confinement). Civil society litigators were finding these practices difficult to litigate and expressed a need to Dignity for tools to better substantiate them. Whilst many precious hours have been poured into producing and sharpening documentation protocols, the uptake and impact (it has to be said) has been negligible. The optimist would cut in with ‘well, so far …’ but I’ve come to realise that stronger forces are at play that mean that it is not simply a question of ‘producing more convincing evidence’. It was, and remains, predominantly a question of how what is viewed is valued – which moves us beyond ‘what does the psychologist say’ instead to ‘do we even need a psychologist for this’ or even ‘what can psychology tell us anyway’.
My title to this blog similarly reflects my own preponderances and presuppositions about how evidence works through such expertise but is also side-stepped by an impulse for convenience and expedience (what do we need evidence to establish, and when does a context which is generally accepted, presumed values and common-sense do a convincing enough job?). All this is to say that I take evidentiary practices to be inescapably shaped by our imaginaries and ideological orientations (i.e., we look for what we think we need towards a certain end). If we come to think of torture as archetypally leaving physical marks, we look for physical not psychological marks. There are no clear answers to any question raised except to say that the legal assessment of evidence operates in broader social and scientific contexts (in constant configuration and contestation). Our appreciation of harm is shaped by our socio-cultural values and disciplinary understandings. This might not be saying anything new to the legal anthropologist or the critically inclined but remains to be better explicated and analysed by legal scholars especially vis-à-vis the UNTBs.
Perhaps even this is putting all that happened over two intensive days too bluntly, missing the nuances and overall richness of what was canvassed. Discussions were simultaneously about taking stock as much as identifying areas for consolidation, for more conceptualisation as well as looking for catalysts of change. There were other gears more comfortable for the young and newly-arrived: for sowing seeds, establishing channels of communication and knowledge exchange. I am happy to report to have left Ghent with a stomach full of waffles, a feeling of belonging to newfound friends at DISSECT, and having witnessed the birth of a collaborative network.
*PhD fellow, University of Copenhagen
[1] Committee on the Elimination of Racial Discrimination (CERD); Committee Against Torture (CAT); Human Rights Committee (HRC); Committee on the Elimination of Discrimination against Women (CEDAW); Working Group on Arbitrary Detention (WGAD). As the symposium observed Chatham House rules, I have avoided specific identifications in my reflections.