4.1 Introduction
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) was adopted by the United Nations (UN) General Assembly in 1965 and entered into force in 1969.Footnote 1 Almost all states have acceded to the treaty, making its coverage nearly universal.Footnote 2 ICERD was the first UN human rights treaty, and the Committee on the Elimination of Racial Discrimination (CERD, the Committee) was the first UN treaty monitoring body.Footnote 3 As Keane and Waughray rightly hold, the Committee ‘pioneered’ the different monitoring mechanisms for all the UN human rights treaty bodies (UNTBs) that were to follow.Footnote 4 Given this longstanding history, one might expect that CERD would by now have had the chance to consolidate its evidentiary regime; such consolidation, however, has not materialised yet. This chapter traces CERD’s development in this area by drawing the contours of its evidentiary regime through an assessment of its overall case law, before offering a closer analysis of two cases that can be considered exemplary of its approach.
It is important to start by locating the Convention in its broader political context, which arguably impacts the way the Committee assesses evidence to this day. Racial discrimination was on the UN General Assembly’s agenda from early on, often in connection with discrimination based on religion.Footnote 5 Following a global wave of anti-Semitic incidents in 1959/1960, the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities issued a resolution condemning these ‘manifestations of anti-Semitism and other forms of racial and national hatred and religious and racial prejudices of a similar nature’.Footnote 6 In the 1960s, the two issues – discrimination based on race and discrimination based on religion – were split and separate conventions proposed. This split was partly triggered by political opposition to the inclusion of anti-Semitism in ICERD, due to some states’ perception of potential implications for the recognition of the State of Israel. In addition, ICERD’s intended focus, establishing an explicit link between racism, colonialism and apartheid, moved the Convention’s scope away from discrimination based on religion. After this split, ICERD was dealt with as a matter of priority. This was preferred by especially Soviet and Eastern European states, which considered tackling racial discrimination to be more urgent than religious discrimination.Footnote 7 Although ICERD’s origins were shaped by the Second World War and anti-Semitism, its realisation was strongly influenced by African and Asian states and their fight against apartheid and colonialism. Yet, due to the Global North–dominated composition of the drafting Sub-Commission, Southern states and actors such as liberation movements could only comment on the process from the sidelines, such as through UN General Assembly debates.Footnote 8 While ICERD was adopted in 1965, efforts to combat religious discrimination resulted only in a non-binding declaration adopted by the UN General Assembly in 1981.Footnote 9
As this brief historical account illustrates, the application of the Convention is prone to generating political tensions – and even CERD’s role was controversial. Initially, CERD’s membership was dominated by diplomats. This had the effect of the Committee and its tasks being considered as more of a diplomatic rather than a legal platform. Stronger engagement with and criticism of state reports only made its way into CERD’s practice once it began to include members from less government-bound and more independent backgrounds, and the number of members with legal expertise increased.Footnote 10 While the perception of the Committee as a primarily diplomatic forum has thankfully changed, some underlying constraints remain. These are grounded in CERD’s (and indeed any UNTB’s) dependence on support, cooperation and funding from the states that it might criticise for racist behaviour in the context of monitoring or views on individual communications. This dependence can lead to a fragility within UNTBs, which, crucially, can also affect their ability to ascertain facts and evaluate evidence. This can be seen in a chronic lack of resources – in particular, trained staff – to deal with incoming individual communications. Furthermore, Committee members frequently lack time to discuss individual communications due to insufficient funding or the refusal of states to cooperate and deliver relevant evidence that is solely within their control.Footnote 11
These general complexities may contribute to explaining why CERD’s evidentiary path is not as well settled as one might have expected after more than forty years of activity. Assessing CERD’s journey so far, this chapter starts by outlining ICERD’s key concepts and the Committee’s evidentiary framework (Section 4.2), before examining how the latter has been applied in merits decisions (Section 4.3). The findings indicate the use of a lower standard of proof for racial discrimination in the application of procedural rights, but the Committee has not taken a discernible stance on evidentiary questions regarding substantive rights yet.Footnote 12 The chapter then proceeds with a more detailed discussion of two cases that illustrate the importance of CERD taking a clearer position: Dawas and Shava v. Denmark (2012) in Section 4.4 and Zapescu v. Moldova (2021) in Section 4.5. In Dawas, the Committee did not engage with the unclear factual situation and the underlying evidence as it was examining the case, resulting in heated debates during the follow-up process. In Zapescu, however, CERD was more transparent on the evidence required from the parties and its relevance for its own decision-making process. This not only provided more direct engagement with evidence but also greater clarity for the handling of future individual communications. Section 4.6 offers concluding reflections on CERD’s continuing efforts to consolidate its evidentiary approach and the need for greater consistency.
4.2 CERD’s Evidentiary Framework
Racial discrimination is difficult to prove due to a number of compounding factors. One is that petitionersFootnote 13 need to prove the causal link between the violation and either the motivation for or effects of racial discrimination (corresponding to direct and indirect discrimination, respectively).Footnote 14 Generating proof of such motivation or effect is often more difficult than proving the act itself. Furthermore, discrimination describes differential treatment in comparable situations – requiring evidence of how the situation would have unfolded if there had been no discrimination. This presupposes that an appropriate comparator has been selected to assess whether a difference in treatment has occurred. In order to take these complexities into account, Section 4.3 starts with some introductory remarks on CERD and ICERD before diving into CERD’s evidentiary framework.Footnote 15
CERD consists of eighteen experts who are elected by states parties but serve in their personal capacity.Footnote 16 The Committee monitors the implementation of ICERD through issuing general and country-specific recommendations; an early warning procedure and urgent action procedure; and – most importantly in the context of this chapter – the handling of communications, which can be brought by individuals or states.Footnote 17 The individual communications procedure under Article 14 is optional and has been recognised by fifty-nine states parties so far.Footnote 18 The decisions on the merits adopted by CERD in individual communications are called views and have an advisory character.Footnote 19
ICERD defines racial discrimination in Article 1 (1) as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’. This definition makes clear that ICERD covers both direct and indirect discrimination (as reflected in the ‘purpose or effect’ phrasing).Footnote 20 In line with the principles set out in General Recommendation 32, ICERD addresses unequal treatment in comparable situations and equal treatment in non-comparable situations.Footnote 21 Differential treatment can only be justified if it pursues a legitimate aim and achieves this through proportionate means.Footnote 22 The special measures under Article 1 (4) aimed at advancing effective equality are an explicit example of justified differential treatment. Other kinds of differential treatment will be assessed based on whether they have an ‘unjustifiable disparate impact’.Footnote 23 However, discussion of such justifications has not been very explicit in CERD’s opinions on individual communications.Footnote 24 While notions such as the comparator and comparable situation do feature in a few opinions, it is not standard for the Committee to have an introductory paragraph in opinions setting out these general principles. Rather, these notions tend to come up in CERD’s references to party submissions.Footnote 25
Paragraphs 2 and 3 of Article 1, which limit the scope of the prohibition of racial discrimination regarding distinctions based on citizenship and nationality, contain a note on evidentiary principles in their supplementary material. Any distinctions falling under these two paragraphs ‘must be construed so as to avoid undermining the basic prohibition of discrimination’.Footnote 26 In this context, there is an explicit statement regarding evidence, as General Recommendation 30 calls on states parties to enact legislation providing for a shift in the burden of proof applied in civil proceedings once a non-citizen has established a prima facie case of discrimination.Footnote 27
Having set out these general principles, we can turn to the question of which evidentiary principles guide the practical assessment of racial discrimination. The one explicit reference in General Recommendation 30 has already been mentioned. In addition, Article 14 contains an evidentiary hint by providing that CERD will consider individual communications ‘in the light of all information made available to it by the State Party concerned and by the petitioner’, indicating a shared burden of production of evidence.Footnote 28 Beyond this, no other ICERD provisions expressly address evidentiary issues.
Continuing the search for evidentiary principles, it is worth looking into CERD’s Rules of Procedure, which were adopted in 1970 and have been amended several times since then.Footnote 29 In the first edition, no rules were laid out for individual communications as the system was not yet operational – the required number of ten states parties was reached only in 1982.Footnote 30 In the following years, close to thirty rules (Rules 91 to 117) pertaining to this procedure were adopted. Already at the admissibility stage, there is an option for CERD to request additional information from the parties (Rule 107). The parties can also submit further information at the merits stage and respond to each other’s submissions within a given time limit (Rule 111). Furthermore, the Committee has the option to invite both parties to provide information in person. While this has been considered an exceptional measure in the past, the fact that the 2025 Rules of Procedure contain a new rule on the conduct of hearings, even through videoconferencing, might make this avenue more accessible in future.Footnote 31 The rather brief rules for the actual phase of considering a communication on its merits include just one provision related to evidence – regarding the ability of CERD to obtain additional information from other UN bodies.Footnote 32
In addition to individual communications, states can submit interstate communications to CERD. Although interstate communications are not the focus of this chapter, they are briefly mentioned to take note of evidentiary issues in this area of CERD activity. The interstate communications procedure is designed as a friendly settlement process where CERD deals with jurisdiction and admissibility. The merits decision is then adopted by an ad hoc Conciliation Commission, which is established for each case anew.Footnote 33 In 2018, the first three cases were brought under this procedure. While two of them were discontinued per request of the applicant State,Footnote 34 the third case – Palestine v. Israel – has been decided on the merits.Footnote 35 CERD has issued new Rules of Procedure relating to interstate communications, but there are no specific rules on evidence, apart from the possibility of an information request.Footnote 36 Furthermore, ad hoc Conciliation Commissions adopt their own rules of procedure, which means that the procedure for interstate communications is even more flexible than for individual communications.Footnote 37
This brief outline already shows that discussions on a general level about the treatment of evidence under ICERD are rare, and the structural framework leaves many questions unanswered. The Committee’s approach towards evidence is thus characterised by flexibility – or, to put it less positively, by uncertainty or a lack of clarity.Footnote 38 With general rules and principles barely being defined, a look at the individual communications procedure and the handling of evidence in practice becomes all the more important.
4.3 CERD’s Approach to Evidence in Practice
Before turning to the two selected case studies, some general remarks are in order about the way CERD handles evidence in its examination of individual communications. This is based on a study of the Committee’s opinions up to November 2024 (excluding the text of petitioners’ communications or potential internal minutes of Committee meetings, neither of which is publicly available).Footnote 39 In this period, the Committee handed down forty-six opinions on the merits.Footnote 40 The majority do not directly engage with questions of evidence. The few that do (sometimes only tangentially) confirm that the evidentiary norms are far from clear. It appears that in several cases, evidentiary matters have been discussed by the parties but not so much by the Committee itself.Footnote 41 One example is the case of Er v. Denmark, concerning a carpentry student who was denied a traineeship based on a company’s discriminatory policies.Footnote 42 Here, the petitioner and the State advanced different concepts of the burden of proof, including with reference to Danish legislation that specifically shares this burden. In addition, the State noted the need for the petitioner to present a prima facie case before CERD.Footnote 43 The Committee’s assessment, however, did not engage directly with these arguments. It was observed that one aspect of the petitioner’s claim had not been ‘sufficiently substantiated’, indicating the threshold for the standard of proof (see further down below in Section 4.3).Footnote 44 It did not mention the burden of proof specifically, but simply noted that the existence of racial discrimination in the case was an ‘uncontroversial fact’, before finding a violation of the petitioner’s right to education.Footnote 45
In a similar fashion, the Committee made short work of a few cases dealing with hate speech (Article 4), where neither the petitioners nor the States seemed to have directly taken issue with evidence: the racist statements in question were uttered at a public event, printed in newspapers and even featured in resolutions adopted by public authorities.Footnote 46 Being readily available, they could be assessed as to their potentially racist content. In those cases, the Committee found not only procedural (investigative failure) but also substantive (actual racist motivation) violations of ICERD. Another example where evidence was not discussed is Habassi v. Denmark, where a Tunisian citizen was denied a bank loan because he was not Danish. The petitioner submitted proof of his nationality as well as the bank’s loan form asking whether he was a Danish national, without discussing evidence further; the Committee also did not mention evidence at either the admissibility or the merits stage while confirming a violation of his right to an effective remedy under ICERD.Footnote 47
One element that CERD generally does not expect petitioners to prove is discriminatory intent. A good example of this is Gabaroum v. France, concerning a black employee who was not given the same opportunities for career advancement as other employees in a comparable position in the car company at which he worked.Footnote 48 The Committee referred to the reversal of the burden of proof which domestic legislation commanded to take place in such a case. In so doing, it endorsed the view that the petitioner could not be expected to prove discriminatory intent.Footnote 49 However, instead of then setting out its own evidentiary principles regarding the burden of proof, it contented itself with observing that the national legislation requiring the burden to be shifted had not been applied properly. The way CERD relies on the resulting domestic legislation, however, can have the effect of leaving out any recognition of a substantive violation by limiting itself to a discussion of procedural matters in the light of domestic law. In the context of individual communications brought against member states of the European Union (EU), this recurring reference to domestic legislation can be explained by an EU directive requiring the shift of the burden of proof once a prima facie case of discrimination has been established.Footnote 50
Given that UNTBs have a smaller caseload and therefore also a smaller pool of their own case law to draw from compared to other legal fora, it makes sense for CERD to look beyond the UN context for inspiration, such as the example based on EU legislation just mentioned. Yet what is missing still is the Committee’s explicit engagement with information on the way in which standards and burdens of proof are handled by other bodies in cases that are brought before it. This can be observed in several cases, potentially suggesting the Committee does not wish to pronounce itself on the allocation of the burden of proof explicitly, while the reversal enshrined in domestic legislation might reflect its own preferred stance.Footnote 51
Terminologies such as prima facie, sufficiently substantiated or arguable, which hint at the Committee’s implicit application of evidentiary standards and burdens, can be found in its decision-making practice.Footnote 52 For instance, the Committee has found cases were admissible after having qualified them as sufficiently substantiated, due to the petitioner having made their case prima facie.Footnote 53 However, the Committee did not explain why and how it was reaching the conclusion that the petitioner had managed to sufficiently substantiate their claim. In Hagan v. Australia, a case concerning a racist term appearing within the name of a sports ground, the Committee described the petitioner’s claim at the admissibility stage as having been sufficiently substantiated. However, the phrase was used without further elaboration on its meaning, apart from CERD stating that the petitioner’s claim fell within the scope of the Convention and that the details would be discussed at the merits stage – which they were not.Footnote 54
The terms prima facie and sufficiently substantiated appear most often at the admissibility stage.Footnote 55 At the merits stage, reference is made to the case being arguable, although only in relation to the procedural right to effective remedies under Article 6.Footnote 56 The Committee explained its rationale in the case Durmic v. Serbia and Montenegro, which concerned a Roma individual who had been denied access to a public place (a discotheque):
the State party must provide for the determination of this right … a guarantee which would be void were it unavailable in circumstances where a violation had not yet been established. While a State party cannot be reasonably required to provide for the determination of rights under the Convention no matter how unmeritorious such claims may be, article 6, provides protection to alleged victims if their claims are arguable under the Convention.Footnote 57
CERD found that by not investigating the petitioner’s substantive claim under Article 5 (f) (equal access to services), the State had violated Article 6.Footnote 58 The quoted passage indicates that the Committee applies a specific threshold to cases related to procedural rights. However, it is unclear how the petitioner can prove their case is arguable. Apart from the qualifier at the lower end of the spectrum – unmeritorious – there is not much information on the evidence that the parties need to provide. In circumstances where procedural violations barred the Committee from examining the substantive part of a claim (such as where it had no access to the information pertaining to the case due to a flawed investigation), the standard for the merits assessment seems lower, but there is no determination of its exact degree. However, evidentiary matters are even less discussed in relation to substantive violations, and the case examples mentioned above read more as if CERD would be inclined to take an approach that tends to favour the petitioner.Footnote 59 It could therefore be inferred that the arguable case standard is to be understood as lower than other standards, such as preponderance of evidence or more probable than not, and thus more akin to prima facie.
This brief overview indicates that CERD has not yet developed a clear evidentiary path. While there are evidentiary hints in the form of recurrent terminology here and there, these have not been incorporated by the Committee into a fully fledged system for the treatment of evidence. Furthermore, discussions of evidence mostly arise in respect of complaints concerning procedural rights under Article 6. Evidence is rarely discussed when substantive violations are assessed, in which case CERD seems to be inclined to take a generous stance towards petitioners’ narratives, simply adopting them unless disputed. This lack of a clear evidentiary path creates uncertainty for all parties involved. In addition, the absence of direction may leave the Committee to produce contradictory decisions and/or outliers, as arguably happened in the two cases discussed below.
4.4 Dawas and Shava v. Denmark: The Late Resurfacing of Unresolved Evidentiary Questions
At first sight, the Dawas case, decided in 2012 and dealing with direct discrimination in the form of racist violence, may appear to be like many other cases decided by the Committee. Usual points were made: for example, the government argued that the petitioners had failed to present a prima facie case, while the Committee found their claims sufficiently substantiated without further elaboration. Uncommonly, however, both the facts of the case and the relevant evidence were hotly disputed between the parties. Not only does the opinion start with a section entitled ‘facts as submitted by the petitioner’ instead of ‘factual background’ (which would indicate a general agreement about the facts), but these facts are subsequently the main point of argument between the State and the petitioners, as is laid out in a response and counter-response in the opinion. As we shall see, the Committee failed to engage with these factual disputes appropriately, showing that CERD’s use of a few recurring phrases is not enough to establish a clear evidentiary path that securely guides its decision-making. In Dawas, unanswered evidentiary questions lingered and ended up being debated even after the Committee had handed down its opinion. What makes the case stand out, then, is not so much the Committee’s lack of engagement with evidence as the reaction of the respondent State to the Committee’s opinion.Footnote 60 The follow-up procedure saw an exchange emerging between the petitioners and the State regarding core facts of the case, which still had not been established at the merits stage.
4.4.1 Overview
The two petitioners were Iraqi citizens living as recognised refugees in Denmark. In June 2004, a group of young people (numbering thirty-five at the highest point) attacked the petitioners’ home. One of the attackers managed to break into the house and physically assaulted the petitioners. These acts were accompanied by chants exhorting the petitioners to ‘go home’ and referring to foreigners in offensive language. This led the petitioners and their family to relocate.Footnote 61 In the criminal trial that followed the attack, four perpetrators (aged between fifteen and seventeen) were convicted on counts of violence, vandalism and weapon possession, but the question of a racist motive was not discussed.Footnote 62 The petitioners claimed that the Danish authorities had failed to investigate the racist motive behind the attack and did not provide them with effective remedies for the violations they had suffered (Articles 2 (1)(d) and 6). In addition, they claimed that the racist motive, in combination with the demand that the petitioners leave the municipality, amounted to a violation of Article 3 on racial segregation and apartheid and Article 4 on hate speech.Footnote 63
The summary of Denmark’s submission, as reproduced in the Committee’s opinion, concluded that there was no evidence of a racist motive and called on CERD to dismiss the communication.Footnote 64 The racist language used during the attack, and the ‘no blacks allowed’ sign on the door of two offenders in the same neighbourhood, were not investigated – the domestic court merely noted that it was unclear who had put up the sign.Footnote 65 In addition, the police had referred the case to the Security and Intelligence Service, as required for potentially racially or religiously motivated criminal incidents, meaning that it had been aware of the potentially racist nature of the attack.Footnote 66 The State claimed that none of this was sufficient to prove a racist motive;Footnote 67 it further stressed that the police, having interviewed witnesses and undertaken an investigation, had found ‘no possible inference’ of a racist motive.Footnote 68
The Committee declared the communication admissible on all counts except Article 3, about which it said that the petitioners had not substantiated how the attackers’ intent to make them leave the municipality amounted to an act of racial segregation or apartheid.Footnote 69 With regard to the remainder of the communication, CERD held that the petitioners had ‘sufficiently substantiated’ their claim for purposes of admissibility. It deferred any further discussion of whether or not the assault constituted racial discrimination to the merits stage (where this was ultimately not further addressed).Footnote 70 On the merits, the Committee first noted ‘that it is not its role to review the interpretation of facts …, unless the [domestic] decisions were manifestly arbitrary, or otherwise amounted to a denial of justice’.Footnote 71 The Committee nonetheless moved to criticise the summary nature of the domestic proceedings, the shift from a more severe to a more lenient sentence, and the lack of adjudication on the racist motive.Footnote 72 As a result, the Committee found that the State party had failed to carry out an effective investigation into the possible racist nature of the attack. It confirmed that this obligation is held by the State and cannot be passed on to the petitioners – who shouldered the burden of proof in the civil proceedings.Footnote 73 Nevertheless, as the investigation into the attack was ‘incomplete’ and the facts of the case remained in dispute, the Committee held that it was unable to find a violation of Article 4 on hate speech; it only declared a violation of the right to an effective remedy, which it based on the ineffective investigation.Footnote 74 CERD recommended that the petitioners be adequately compensated and that Denmark undertake a review of its policies regarding investigating racial discrimination.Footnote 75
During the merits assessment, the Committee stayed away from assessing the original facts of the incident. Its observations were mainly directed at the domestic proceedings rather than at the claims in dispute between the parties, such as whether the racist door sign was relevant to the case. In Hagan v. Australia, the Committee had called upon the State to ensure the removal of a racist sign.Footnote 76 Yet in Dawas, the Committee did not explore this potential avenue and failed to assess whether there had been a substantive violation of the prohibition of hate speech. Its only constructive evidentiary engagement was noting that the State had not submitted any information on the outcome of the referral to the Security and Intelligence Service. However, the Committee did not specifically request this information from the State, but simply mentioned at the merits stage that this piece of information was missing, without elaborating on its relevance.Footnote 77 It is important to add that the Committee held that some facts were ‘undisputed’ between the parties, such as the number of assailants and that the petitioners were exposed to racist language. Yet, these points were challenged by the State in the follow-up procedure, and it is unclear how the Committee came to the conclusion that they were settled.Footnote 78
4.4.2 The Afterlife of Evidence
As seen above, the facts of the Dawas case were contested right from the start of the proceedings, which put the Committee in a difficult position. Yet, apart from the remark that the petitioners were left with the burden of proof in civil proceedings and the relatively low threshold at the admissibility stage, the Committee did not go into further detail about what principles would properly guide its treatment of evidence and what kind of evidence it expected the parties to present in order to prove their claims. Having addressed these points might perhaps have prevented what was to come in the follow-up procedure, where evidence seems to have led some kind of afterlife after having been sidelined by the Committee when it would have mattered most.
In 2018, what had happened in the follow-up procedure was laid out in two CERD reports to the UN General Assembly.Footnote 79 The first of these reported that Denmark had requested outright that the Committee reconsider its opinion and objected to its obligation to disseminate the Committee’s findings. CERD’s Rapporteur on Communications had met with a Danish official in 2013 and reaffirmed that CERD would not reconsider its opinion, that the findings had to be disseminated widely and that the petitioners should be adequately compensated. In December 2013, Denmark had responded that it ‘did not wish to make further comments’.Footnote 80
The second report revealed another layer to the discussion, revolving around evidence. Denmark had claimed that CERD’s opinion was ‘based on number [sic] of misunderstandings regarding the facts of the case and the legal provisions applicable to the case’.Footnote 81 Regarding the assessment of evidence, Denmark had argued that the Committee had been wrong to find that Danish authorities had not investigated the racist motive, as ‘it would not be possible during the trial to prove that the assault was indeed racially motivated’.Footnote 82 With reference to a video recording of parts of the attack and to witness statements, Denmark submitted that there were no indications of a racist motive.Footnote 83 Furthermore, Denmark disputed the number of assailants and the use of offensive language. According to the State, witness statements rather indicated a smaller group, possibly only the four individuals who were eventually charged, while others had merely been ‘spectators’.Footnote 84 In addition, Denmark argued that the petitioners had not made any reference to a racist motive in their initial statements, therefore diminishing the credibility of their allegations. Reading Denmark’s comments, one could assume that the only potential indicator of a racist motive would have been the racist sign on the offenders’ door,Footnote 85 regarding which the State asserted that it was unclear who had put it up and whether it was directed at the petitioners.Footnote 86
The petitioners had responded to the State’s comments. As to the number of people involved in the attack, the petitioners stated that the police had not made any effort to establish a complete account of everyone present and their reasons for being there. Furthermore, their arrival by invitation spoke against the idea that those present at the scene would have been mere spectators, but rather bolstered their characterisation as ‘supporters’.Footnote 87 According to the petitioners, these additional persons had never been interviewed by the police. Regarding the video recording, the petitioners noted that in addition to documenting only parts of the attack, its quality was not very good, and it did not include offensive language shouted at the petitioners. This led them to dispute that the recording should even have been considered admissible evidence. Furthermore, they pointed out that the racist sign was only taken down after their complaint to local authorities.Footnote 88 Another round of exchanges had followed, which had seen Denmark and the petitioners restating their positions. In 2014, Denmark provided additional information regarding legislative changes that had occurred since the attack in 2004, but remained insistent that it would not consider paying compensation in the case at hand. The Committee then decided to close the follow-up procedure, with the outcome defined as ‘partly satisfactory’.Footnote 89
As highlighted above in the case law overview, it is rare for the Committee to address evidence in its discussion of the merits of a case. In Dawas, general principles were nonetheless mentioned both by the State and the Committee. However, there was no effort to link these principles specifically and coherently to the concrete evidentiary issues which arose in the case. The facts were disputed by the parties, but the Committee did not spell out what proof each side would have been expected to provide for them to be considered established. Addressing only the ineffective domestic investigation, it failed to engage with the substantive hate speech complaint. It contented itself with noting that some aspects were contested between the parties and others ‘undisputed’, without either explaining the reasons for its conclusions or identifying which was which. Its factual findings were not received well by the State, which strongly opposed them in the follow-up. In other words, questions of evidence left unaddressed at the right time came back to haunt the Committee. A conscious engagement with the facts and with evidence at the merits stage would have been preferable, as illustrated in the second case selected for review (Section 4.5).
4.5 Zapescu v. Moldova: Towards Direct Engagement With Evidence
Whether or not Committee members had Dawas in mind as they were examining Zapescu in 2021, they did not make the same mistakes as nine years earlier. Zapescu, another direct discrimination case, saw the Committee take a clearer stance on the evidence the parties should have provided to substantiate their claim. It also offered direct reasoning on several pieces of evidence, as well as on the role that this evidence played in the Committee’s decision-making.
4.5.1 Overview
In 2012, the petitioner and his friend simultaneously applied for a position as a waiter at a pizza restaurant. On the questionnaire, the petitioner stated that Romani was his mother tongue, and he allegedly confirmed his Roma ethnicity during the interview.Footnote 90 He and his friend were interviewed for the job on the same day. The petitioner’s friend was offered the position, but he himself never heard back from the restaurant. The only manifest difference he could see between him and his friend was his ethnicity, with their language skills and work experience otherwise being similar. He initiated civil proceedings on grounds of discrimination, but to no avail, whether at first instance or on appeal.Footnote 91
Before CERD, the petitioner claimed violations of Article 5 (e)(i) (right to work) and Articles 6 (right to a remedy) and 7 (measures in education to combat racial discrimination), read in conjunction with Article 2 (1)(d) (state obligation to prohibit discrimination and bring it to an end).Footnote 92 The petitioner argued that although Moldovan legislation prohibited racial discrimination, the implementation of some of the laws relevant to his case was insufficient (an argument which could also have counteracted the State defence in Dawas that legal provisions had been changed – on paper).Footnote 93 Referencing cases from the European Court of Human Rights, the Court of Justice of the European Union and the UN Human Rights Committee, the petitioner argued for the burden of proof to be shifted since he had established a prima facie case.Footnote 94 This argument first appears in the complaint section of the text of the opinion, but is then reiterated when the petitioner’s comments on the merits are reported (rather than featuring only when admissibility is discussed). This indicates the relevance of this point for the merits of the case.Footnote 95 As noted above in the general discussion as well as regarding Dawas, at admissibility, the Committee has at times deferred its examination of whether the claim had been sufficiently substantiated to the merits stage but had then failed to return to this issue later. Such a deferral (as long as it is properly taken up again), however, can make sense in the context of an Article 6 complaint. This is because the substance of Article 6 is precisely procedural issues, including the reversal of the burden of proof after a prima facie case has been submitted.Footnote 96 Read together with the arguable case standard, this indicates that the standard of proof required from the petitioner in support of allegations related to Article 6 is relatively low.
The State party’s submission contained several statements from governmental authorities, some of which will now be discussed. First, the State seemed to have taken for granted that the recruitment process of the restaurant chain had been non-discriminatory. To quote the Moldovan Ministry of Health, Labour and Social Protection, ‘the selection process was governed by a regulation, adopted at the company level, that establishes clear and non-discriminatory recruitment criteria. Consequently, the outcome of the selection process should be considered to have been based on legitimate grounds.’Footnote 97 However, how the Ministry arrived at this conclusion is not discussed, and no evidence is provided in support of the statement. Indeed, the lack of any information detailing the ‘clear and non-discriminatory’ criteria was criticised by the petitioner and the Committee.Footnote 98
The Ombudsman’s Office had contributed to the State’s submission. It noted that the Moldovan Council on Preventing and Eliminating Discrimination and Ensuring Equality (CDE) had issued an advisory opinion on the case, in which it drew the domestic courts’ attention to the need to reverse the burden of proof in cases dealing with discrimination.Footnote 99 The Ombudsman’s Office also held that while the petitioner had proven a prima facie case of discrimination, the Court of Appeal of Chisinau had noted that several employees of the company with different ethnicities had ‘confirmed the friendly and tolerant attitude of the company’s administration toward its employees’.Footnote 100 This, however, is not convincing. Such general statements offered by other employees cannot outweigh the petitioner’s individual prima facie case, the more so since it is questionable how much credibility can be given to feedback gathered from active employees, especially when it is unclear how they were questioned and by whom. Indeed, as will be shown below, the Committee took issue with this part of the State’s submission as well.
In their refutation of the State’s arguments, both the petitioner and a third-party intervention by the Legal Resources Centre from Moldova referenced international case law.Footnote 101 They also backed their submissions with information regarding the Moldovan judicial system and its specific shortcomings, including a ‘systemic failure regarding the understanding of how the burden of proof should apply in discrimination cases’.Footnote 102 The Legal Resources Centre highlighted the failure of the courts to draw inferences from the company’s refusal to submit the petitioner’s application form as evidence. It also criticised the domestic courts’ readiness to draw inferences, by contrast, from the petitioner’s actions, including his decision not to seek a court order compelling the company to hire him.Footnote 103
Presented with these claims and arguments, how did CERD decide the case? Regarding admissibility, it did not discuss whether the petitioner had substantiated his case. Instead, the focus was on points brought forward by the State, such as the non-exhaustion of domestic remedies, which it refuted one by one.Footnote 104 At the merits stage, the two pertinent provisions became Article 5 (e)(i) addressing the right to work and Article 6 on effective remedies.Footnote 105 As to the former, the Committee held that simply enacting legislation prohibiting discriminatory employment practices was insufficient, as effective implementation in practice also needed to be ensured. The Committee further noted ‘with concern’ that the State party seemingly took for granted that the recruitment criteria adopted by the restaurant chain were non-discriminatory, without this being supported by any further information.Footnote 106 Having adopted these findings, the Committee decided not to rule on the right to work or on Article 7 (education measures), but only to examine the merits related to Article 6, as most claims were about effective protection and remedies rather than access to work.Footnote 107
With regard to the standard of proof required for Article 6, meaning procedural violations, the Committee noted that the petitioner only needs to present an arguable case.Footnote 108 CERD also noted that the State ‘did not provide any specific arguments’ regarding the effectiveness of the available domestic remedies, including on whether and how the burden of proof is reversed in discrimination cases.Footnote 109 Following this, CERD restated its general position that petitioners should not be required to prove discriminatory intent and held that, despite the reversal of the burden of proof being enshrined in domestic legislation, it was not applied in the petitioner’s case. Instead, the domestic courts held it against the petitioner that he had not provided further evidence of his ethnic origin apart from his own statement – thus contradicting the generally accepted principle of self-identification.Footnote 110 Furthermore, the Committee rightly confirmed that the domestic courts had placed too much emphasis on the fact that the petitioner had asked for compensation instead of employment by the restaurant.Footnote 111 In response to the domestic courts’ view that the petitioner’s decision not to approach the CDE confirmed ‘the absence of a “real situation of discrimination”’,Footnote 112 the Committee persuasively noted that the petitioner’s choice to seek a judicial remedy instead of a CDE decision, which had only declaratory effect, could not be taken to diminish the credibility of his claim.
The Committee further criticised the domestic courts for not requiring the company to detail the specific reasons why the petitioner had not been hired, and for putting the emphasis on witness testimonies and general statements collected from other employees instead. In other words, the Committee put the burden of producing relevant evidence on the State (meaning on the domestic courts to have requested this information from the company in the course of the proceedings). In the context of any future similar individual communication, this logically should mean that the state party would be expected to produce evidence as to whether the domestic courts actually did request information from the company, as well as on the results of this request. Furthermore, CERD criticised the courts for ignoring the guidance submitted by the CDE on reversing the burden of proof. Regarding the statements of other employees, the Committee made the important point that these statements were not only general in nature, but were also made by persons ‘of a different age, gender and ethnicity than the petitioner and who are employed in other positions’. This could ‘not guarantee that these persons were in an identical situation to the petitioner’, thus questioning the choice of comparator group.Footnote 113 In the Committee’s opinion, this also led to a failure to appreciate the potential effects of intersectionality and ‘ethnic hierarchies’ on access to the labour market.Footnote 114
Concluding on Article 6, the Committee found that the petitioner had presented an ‘arguable case’, but ‘that he was nonetheless left with a disproportionate burden to prove the respondent company’s discriminatory intent’.Footnote 115 While domestic legislation did call for the reversal of the burden of proof, this had not been applied here, leaving the petitioner without effective protection from discrimination. Consequently, the Committee found a violation of Article 6 caused by the failure of domestic courts to properly shift the burden of proof.Footnote 116 The Committee recommended that the State party convey an apology to the petitioner, as well as provide adequate compensation and undertake measures to ensure the proper enforcement of anti-discrimination legislation. The latter included a recommendation on the training of judges to make sure ‘that the principle of shifting the burden of proof is fully observed’.Footnote 117
4.5.2 Breathing New Life Into Evidentiary Practices
As can readily be seen, in Zapescu, the Committee specified at length the kind of evidence that would be required to prove or disprove a claim, and from whom. It also provided more direct information on its own assessment of particular pieces of evidence. By doing so, the Committee brought abstract principles to life and made them more tangible. This is an important step, as this clarification of the Committee’s approach will both help future parties to prepare their cases and support Committee members in their decision-making.
Zapescu is part of an ongoing line of cases where the Committee has found that the failure to shift the burden of proof amounts to a violation of Article 6.Footnote 118 However, this finding is generally linked to a failure by the state to respect its own domestic legislation requiring this shift. The Committee has not gone as far as holding that under the Convention, the failure to reverse the burden of proof would amount to such a violation. Still, this is an important recurring finding that could at least be indicative of the Committee’s own stance in this regard. What was new in Zapescu is that CERD took more time to address the evidence than in previous cases. A good counter-example here is V.S. v. Slovakia. This case, decided in 2015, concerned discriminatory recruitment practices by a public elementary school. The school did not hire the petitioner, a qualified teacher of Roma origin, but instead a non-Roma individual who was less qualified.Footnote 119 Here, the Committee did not address the evidence presented by the parties in any detail. How relevant were: general reports on the situation of Roma in Slovakia; the statement by the head of school that the petitioner should not look for a job but instead have children like other Roma women; or the point made by the State that the school had employed Roma before?Footnote 120 In its assessment of the right to work, the Committee simply found that the State had ‘not satisfactorily replied to the petitioner’s allegations’ and that it had failed to provide ‘persuasive arguments to justify the differential treatment’. There is no further mention of these points in the assessment of Article 6.Footnote 121 While in V.S., CERD did not comment further on the evidence that the State would have needed to provide to comply with the burden of production imposed on it after a shift, it did so in Zapescu. This gave the parties a better idea of the Committee’s understanding of what shifting the burden of proof would entail in practice. The Committee commented on the burden of production of evidence regarding the company’s recruitment criteria, on the relevance of testimonies by other employees, on the inferences (not) drawn by domestic courts, and on the relevance it attributed to this information. This made the decision-making process of the Committee more transparent. While it is regrettable that CERD only had discussed but not ruled on the substantive violations in Zapescu, its more direct guidance on what amounts to relevant evidence is a welcome step towards greater clarity for future parties and Committee members alike.Footnote 122
4.6 CERD and Evidence: Still Trying to Find Its Feet
After more than forty years of practice, the Committee is still clearly trying to find its evidentiary feet. The cases discussed above show that there is no clear stance on the assessment of evidence yet, and that this uncertainty has resulted in some outlier cases. In Dawas, the facts of the case were disputed, and the Committee struggled to engage with them, leading to a fierce debate about the core issues of the case even after the Committee had adopted its opinion. Zapescu, by contrast, may be considered as a case that indicates a way forward, as the Committee strived to spell out which evidence it would expect from the parties to prove their claim. The Committee could nonetheless be more forthcoming in its use of information requests (also through hearings as laid out in its new Rules of Procedure), instead of later informing the parties, as it discusses the merits, that some information that it considered relevant was missing. Such information requests would be a good opportunity to trigger a reaction by the respective party, who then would have the chance to deliver the evidence requested before their claim fails.
Procedural violations under Article 6 seem to be at the centre of the evidentiary debate. There are indications that the standard of proof is lower in this context and that the failure to shift the burden of proof after presenting a prima facie case amounts to a violation. Regarding substantive violations, there is little to no discussion of evidence, and the Committee either simply finds a violation or focuses on procedural aspects under Article 6 instead. Given that the opinions the Committee has adopted so far offer several diverging scenarios, it is not possible to discern a clear line of decision-making practice (even implicitly) in this regard just yet.
Although CERD is a longstanding actor in the UNTB system, there is still a lot of uncertainty regarding key questions of evidence and their treatment in principle and in practice. The complexities in proving racial discrimination or indeed any form of discrimination do not make the Committee’s task any easier. Yet developing a clearer approach to the handling of evidence and the guiding principles behind it could help the Committee in doing its work, at the same time as making the individual communications procedure more accessible and predictable. Beyond these practical considerations, a clearer stance on evidentiary principles would also have broader benefits as it would enhance the Committee’s credibility and legitimacy and ultimately, the fairness of the individual communications procedure as a whole.
5.1 Introduction
Redressing arbitrary detention is imperative, as this practice violates a peremptory norm of international law. It is often a gateway to further violations, including extrajudicial killings, torture and other cruel, inhuman or degrading treatment or punishment, enforced disappearances and sexual- and gender-based violence.Footnote 1 In confronting these human rights violations, several human rights monitoring mechanisms within the United Nations (UN) system are able to hear individual cases. Among these, the United Nations human rights treaty bodies (UNTBs), such as the Human Rights Committee (HRC), the Committee against Torture and the Committee on the Rights of the Child, are particularly prominent and share a quasi-judicial character with the Working Group on Arbitrary Detention (Working Group). While there are differences between the Working Group and UNTBs – including the formalised admissibility procedures at the UNTBs – one feature common to all these mechanisms is that they must deal with evidence in order to reach their conclusions on violations of international human rights law.Footnote 2 Reviewing the Working Group’s approach to evidence provides useful points of comparison regarding the UNTBs and their evidentiary procedures.
The Working Group on Arbitrary Detention, which has operated since 1991, has heard over 1,600 individual cases based on information submitted by persons or organisations alleging arbitrary arrest or detention. The increasing sophistication of the Working Group’s approach to evidence demonstrates the maturing of its work over the decades from a focus on substantive developments, which have largely been established in its jurisprudence, to cementing its procedural practices. This is also reflected in the Working Group’s gradual shift to examining the secondary level legal standards that it applies, such as by formalising the burden of proof.Footnote 3 As a mechanism which has been described as enforcing human rights law through recommendations,Footnote 4 the Working Group’s impact is heavily conditional on the quality of its fact-finding procedures and the accuracy of its assessments.Footnote 5 As it heightens the rigour of its approach, the Working Group provides strong incentives for rules-based bodies at the domestic and international levels to take up its conclusions and procedures.
In this way the Working Group’s approach to evidence provides a model from which UNTBs may draw inspiration.Footnote 6 Just like the Working Group, UNTBs rely on material submitted to them to reach their views. This raises questions as to how evidence is submitted and assessed, what standards and burdens are applied to evidentiary questions and what evidentiary challenges are emerging in the practice of these human rights bodies.
This chapter provides a unique point of comparisonFootnote 7 for UNTBs by reviewing the phases of the Working Group’s jurisprudential development and arguing that (1) the Working Group’s increasingly formalised and standardised approach to evidence reflects the maturing of the Working Group and its entrenchment in the ecosystem of human rights bodies; (2) such a considered evidentiary approach on its part can serve to enhance its credibility with States (and claimants, who are called ‘sources’), which in turn can prompt higher rates of compliance; and (3) its detailed approaches to evidentiary standards and challenges could inspire UNTBs with individual claims mandates to follow a similar approach. These arguments fit into the theoretical framework of effective supranational adjudication proposed by Helfer and Slaughter for transposing practices from the European Court of Human Rights (ECtHR) onto the HRC.Footnote 8 In particular, it prioritises legitimacy, in the sense of principled decision-making, coherent processes, impartiality and consistency, as the fulcrum for effectiveness for bodies with limited enforcement tools such as the Working Group.Footnote 9
The arguments set out above stem from a detailed retrospective and prospective analysis of the evidentiary approach adopted by the Working Group in the conduct of its individual complaints mandate and associated activities. Following this introduction (Section 5.1), Section 5.2 situates the Working Group’s evidentiary approach within its mandate to rely on credible and reliable information. Section 5.3 then outlines the development of this approach across three phases of the Working Group’s operations, namely its establishment (Section 5.3.1), expansion (Section 5.3.2) and consolidation (Section 5.3.3). Section 5.4 proceeds to address emerging evidentiary issues in the Working Group’s practice, namely the heightened standard of review in certain cases (Section 5.4.1), the use of digital evidence (Section 5.4.2), the use of external evidence beyond that submitted by the parties (Section 5.4.3) and the Working Group’s own gathering of relevant information while on mission (Section 5.4.4). Each of these challenges has potential ramifications for UNTBs, whose evidentiary approaches and standards may come to be scrutinised. Moreover, because the Working Group is not a consent-based body like the UNTBs, its acceptance is particularly contingent on the quality and robust evidentiary findings of its decisions. In this light, Section 5.5 examines three indicia through which the impact of the Working Group’s evidentiary approach can be observed, namely compliance (Section 5.5.1), state responses (Section 5.5.2) and the responses of third parties such as regional human rights courts and UNTBs (Section 5.5.3). Section 5.6 concludes with recommendations for the Working Group’s approach to evidence, which may also prove valuable for UNTBs facing similar issues.
5.2 Encouraging Credible and Reliable Information: The Working Group’s Overall Evidentiary Mandate
The Working Group was established by the former Commission on Human Rights, under Resolution 1991/42.Footnote 10 Its mandate has been renewed periodically, most recently in 2025 under Human Rights Council Resolution 51/8. Regarding the Working Group’s core task, the Commission on Human Rights reiterated that this is to ‘investigate cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments accepted by the States concerned’.Footnote 11 To carry out its mandate, the Working Group should ‘seek and gather information from Governments and inter-governmental and non-governmental organizations, as well as from the individuals concerned, their families or their legal representatives’. The Working Group must carry out its task with ‘discretion, objectivity, impartiality and independence, within the framework of its mandate’, and the experts should ‘perform their task with rigour, having regard to the very specific nature of their mandate, and to respond effectively to credible and reliable information that comes before them’.Footnote 12
The reference to a threshold of credible and reliable information relates directly to the approach and standards that the Working Group applies to evidence. Indeed, the Working Group’s evidentiary procedures are the vehicle by which it can filter out unreliable and incredible information in a fair, transparent and consistent manner. As will be mapped in the following sections, the Working Group has developed its approach to evidence over time through its jurisprudence and its other normative instruments. Examining this developmental arc reveals how the Working Group’s approach has coalesced on a specific sequenced method, which shares burdens between the complainant and the respondent government. A clearer articulation of this method may help to encourage consistency across quasi-judicial human rights bodies, including UNTBs, when determining disputed cases of alleged violations.
5.3 Developing a Standardised Approach to Evidentiary Assessments
From the outset of its operations, the Working Group’s core task has involved the collection of information regarding potential cases of arbitrary detention.Footnote 13 Relevant governments and individuals, as well as inter-governmental and non-governmental organisations (NGOs), are required to provide information to the Working Group to this end.Footnote 14
Quantitatively, from 1991 to the end of 2022, the Working Group has generated at least 1,600 judgments (called opinions) as a result of its adversarial process.Footnote 15 Qualitatively, the Working Group’s opinions now have a relatively settled structure, based on five categories of arbitrary detention, covering: detention for which it is impossible to invoke a legal basis (category I); detention resulting from the exercise of certain human rights (category II); detention following serious violations of fair trial rights (category III); immigration and asylum related detention (category IV); and discriminatory detention (category V).
A survey of the Working Group’s activities during its three decades of operations indicates that it has undergone three major phases: (1) an initial ‘establishment’ phase; (2) an ‘expansion’ phase; and (3) its current ‘consolidation’ phase.Footnote 16 As set out in Sections 5.3.1–5.3.3, in relation to evidentiary standards and burdens, the Working Group has employed increasing precision and consistency as it has progressed through these phases, to the point where its current jurisprudence has a uniform expression of its approach. However, that explicit uniformity does not comprehensively address all evidentiary issues, and in some respects raises further questions, as subsequently addressed in Section 5.4.
5.3.1 Phase 1: Establishment (1991–2011)
In the first phase of its operation after its creation in 1991, the Working Group set up its procedures and developed its major lines of jurisprudence in its opinions, including its three initial categories of arbitrary detention (i.e. detention with no legal basis, detention resulting from an exercise of rights and detention following serious violations of fair trial rights).Footnote 17 Opinions during this period were relatively short, listing the three categories, a brief summary of the parties’ main arguments and the Working Group’s conclusions.Footnote 18 Alongside its opinions in individual cases, the Working Group also expressed views on relevant human rights standards in its deliberations, legal opinions, country visit reports, urgent appeals and joint reports with other mandates of the special procedures on legality and arbitrariness in human rights treaties and customary international law.Footnote 19 On 1 May 2000, the Working Group issued its Fact Sheet No. 26, which explicitly set out its working methodology in a codified manner.Footnote 20 A revised version, issued in advanced format in 2019 and formally issued in 2024, sets out the relevant procedures applied by the Working Group.Footnote 21 However, the fact sheet does not elaborate on evidentiary burdens and standards, which are instead addressed in various opinions of the Working Group that it references.
With regard to evidence and burdens, the Working Group’s opinions during its establishment phase exhibited a variety of approaches. They variously suggested an overarching burden on the source or on the Government, or sometimes did not mention the burden at all. The latter was the tendency in the early years, when the Working Group frequently pointed to the lack of a response from the government before reaching its factual determination, without explaining the impact on its assessment of the source’s claims.Footnote 22 However, various indirect references gave a mixed picture as to the evidentiary approach being taken. When the Working Group noted a lack of material on the record, this led in some cases to findings against the government – for example, that ‘[t]here is no material on record to lead the Working Group to draw an inference that the expression of [the claimant’s] opinions endangered in any way national security or public order’.Footnote 23 In other such cases, findings were made against the source, for example, that ‘[w]ith regard to the use of a statement obtained under torture, there is no evidence to justify a finding by the Working Group that this allegation has been proved’.Footnote 24 Conversely, the absence of sufficient evidence sometimes led the Working Group to decide to take no further action, stating for example that: ‘if [the Working Group] does not have enough information to take a decision, the case remains pending for further investigation and if the Working Group considers that it does not have enough information to warrant keeping the case pending, the case is filed without further action’.Footnote 25
On one occasion, the Working Group referred to a lack of convincing evidence as excluding the possibility of reaching a finding that detention was arbitrary or otherwise.Footnote 26 However, it also made ‘reasonable’ assumptions due to government silence on an issue, for example, that:
[i]n its reply, the Government does not maintain having complied with this provision and the Working Group must consequently presume that the Government did not order any investigation. It is therefore at least reasonable to assume that Mr. Kakoun may well have been subjected to acts of torture and that his confession could well be the result of such acts, in which case, pursuant to article 15 of the Convention against Torture, the confession in question should not have served as evidence, as it did.Footnote 27
In another case, the Working Group referred to the need for justification by the government, stating that ‘the Working Group has not been provided with clear reasons to question the allegation of the source’.Footnote 28
Despite its indirect references to evidentiary burdens, the Working Group’s approach in this respect was still not presented in a settled or uniform way after two decades of its operations. However, this establishment phase came to a close in 2011, when the Working Group took several significant steps towards the expansion of its operations, including a more explicit codification of its approach to evidence and burdens.
5.3.2 Phase 2: Expansion (2011–2019)
The year 2011 saw three major developments which reflected a discernible change in the operations and outputs of the Working Group.
First, in the Working Group’s annual report of 19 January 2011,Footnote 29 the Working Group expanded the range of categories of arbitrary detention it dealt with from three to five, adding category IV on immigration-related detention and category V on discriminatory detention. The expanded categories have been repeated in Working Group reports and opinions over the ensuing years,Footnote 30 and have been extremely important facets of its work.Footnote 31
Second, the Working Group launched a database to facilitate access of victims, states and civil society to its opinions and other materials.Footnote 32 This was followed by a steady increase in the number of individual complaints submitted to the Working Group and a corresponding rise in its output of opinions. At the time of writing, these numbered around 70–90 per year, up from 60–70 per year around 2011.Footnote 33
Third, and most significantly for present purposes, 2011 saw the Working Group explicitly set out how it deals with burdens and evidentiary issues in its 2011 Annual Report, after years of developing jurisprudence.Footnote 34 In this report, the Working Group noted that its evidentiary approach, established through practice, was in line with the International Court of Justice (ICJ)’s position on evidentiary burdens in the case of Ahmadou Sadio Diallo.Footnote 35 The Working Group articulated this approach as such:
In general the burden rests with the Government: it is for the Government to produce the necessary proof. More generally, the matter of the evidentiary burden arises where the source has established a prima facie case for breach of international requirements constituting arbitrary detention.Footnote 36
This statement reflects two separate but related points: (1) the overall burden which typically falls on a source (also known as the claimant or initiator) of a judicial process to establish a case (onus probandi incumbit actori);Footnote 37 (2) the evidentiary burden of providing materials that a victim could not reasonably be expected to access. Both principles are important, but the conceptual distinction between them becomes significant in terms of the sequencing of the burdens in the Working Group’s usual approach to evidence, which will be discussed in Section 5.3.3. Whereas the Working Group had referred to this approach in prior opinions,Footnote 38 its adoption of this formulation in its 2011 report marked a clear shift towards formalising it. Since then, the Working Group has referred to this statement and clarified it in several of its opinions,Footnote 39 and has more or less uniformly applied this approach since 2019.Footnote 40
With regard to evidence, this expansion phase saw the Working Group elaborate on its approach with statements that were often repeated in subsequent opinions. In relation to the source’s allegations, it explained that submission is considered ‘consistent’ or ‘detailed’ when the source provides corroborating evidence;Footnote 41 when co-claimants share similar accounts that are nearly the same in all material aspects;Footnote 42 when the source’s claims are supported with external documentation such as credible news reports and findings by other international human rights bodies;Footnote 43 and when the source’s claims are supported by the Working Group’s own prior findings that detention was arbitrary under similar conditions.Footnote 44 If a source has presented a prima facie case of arbitrary detention, the implicated government can meet its burden by producing a detailed and substantiated account of the actions that were carried out.Footnote 45 However, in an oft-repeated refrain, the Working Group has held that ‘mere assertions by the Government that lawful procedures have been followed are not sufficient to rebut the source’s allegations’.Footnote 46 Consequently, where the government disputes credible allegations by the source but fails to address specific points or provide details that it should know, the Working Group will typically accept the source’s factual submissions.Footnote 47
Alongside the increase in the number of categories of detention to include immigration-related detention and discriminatory detention, the expansion phase saw the Working Group explicitly express its approach to burdens and evidence and increasingly apply this in opinions. Nonetheless, questions of evidence continued to arise throughout this period, and became particularly prominent during the subsequent consolidation phase.
5.3.3 Phase 3: Consolidation (2019 Onwards)
Having engaged in an expansion phase from 2011, the Working Group has since 2019 entered what could be seen as a phase of consolidation. This was marked by the issuance of revised Fact Sheet No. 26. It provides more details about the procedures followed by the Working Group and, significantly, adds an important new reference to discrimination as one of the major causes of arbitrary detention.Footnote 48 The Working Group’s adversarial process has also progressed to the point where many states engage with this on a relatively regular basis, although not always in a timely or comprehensive manner.
During this consolidation phase, the major legal lines in the jurisprudence have been relatively settled and clear. For example, the Working Group has found detentions to be arbitrary when persons are placed incommunicado and/or without access to legal advice during significant periods of their detention;Footnote 49 or when the authorities detain a person participating in a peaceful protest and fail to demonstrate that the person was engaged in violence or any other activity falling under a permissible exception to the rights to freedom of expression and assembly.Footnote 50 These are instances which could be incorporated into UNTBs’ approaches where relevant.
While a reasonably consistent substantive jurisprudence has developed, the Working Group’s approach to evidence has received increasing focus in this phase. The Working Group has now largely settled its approach to evidence, particularly in terms of the burden, but has not definitively settled the standard it applies to weighing evidence. These and other issues that continue to arise during this current phase are analysed in detail in the following section.
5.4 Emerging Evidentiary Issues
With the Working Group having firmly established its approach to evidence over these three phases of its existence, several questions arise regarding associated tests, such as the heightened standard of review in certain cases, the use of digital and external materials as evidence and the evidentiary standards applied by the Working Group in its other functions beyond considering individual cases. Responses to these issues could be instructive for other human rights bodies, particularly UNTBs with adjudicative functions.
5.4.1 The Heightened Standard of Review
When claims involve certain rights or victims, the Working Group has often reiterated that it applies a ‘heightened standard of review’.Footnote 51 This includes cases when the deprivation of liberty results from the exercise of fundamental rights and freedoms (category II)Footnote 52 or involves a discriminatory aspect or targeting of certain individuals, such as human rights defenders (category V).Footnote 53 Concerning the cases of human rights defenders, in particular, the Working Group has held that restrictions on their expression would be subject to ‘particularly intense review’Footnote 54 and ‘strict scrutiny’,Footnote 55 adding that to detain a human rights defender because of their work would violate their rights to equality under the law.Footnote 56 The Working Group has also stated that this heightened review by international bodies is especially appropriate where there is a ‘pattern of harassment’ by national authorities targeting such individuals.Footnote 57
In its 2017 Annual Report, the Working Group laid out how it determines whether a source has demonstrated a case of arbitrary deprivation of liberty on discriminatory grounds to the requisite prima facie standard.Footnote 58 In such cases, governments have the obligation to demonstrate that the detention is proportional and absolutely necessary and no other alternative measure is feasible on the basis of a legitimate state interest. Governments are also under the obligation to prove that the length and the overall conditions of custody are in full respect of international guarantees. In a similar vein, the Working Group has held that when individuals are detained under preventative detention, the government’s burden of proof increases the longer the person is detained, which aligns with the HRC’s position on the issue.Footnote 59 Given the synchrony between the Working Group and the HRC on this issue, it could be taken up by other UNTBs as a guide for their application of the law to the facts concerning potentially discriminatory detention (or any similar type of human rights violation).
However, based on its category V jurisprudence, it is not yet clear how the Working Group might take into account multiple, intersecting forms of discrimination, and whether this requires the government to rebut each alleged ground with evidenceFootnote 60 or to demonstrate that the cumulative effect of multiple forms of discrimination did not result in arbitrary detention.Footnote 61 The Working Group could be more explicit in its analysis of what constitutes intersectional discrimination under international law and add significant value to its jurisprudence, as well as to the broader understanding of detention on discriminatory grounds.Footnote 62
5.4.2 Digital Evidence and Digital Submissions
Another emerging issue is that of the Working Group’s receipt and assessment of digital evidence. The Working Group requires information to be submitted digitally under its communications procedure but has not explicitly stated how it deals with the use and management of digital evidence.Footnote 63 The Working Group’s Model Questionnaire refers to the submission of documents but does not explicitly address the types of evidence formats that the Working Group may accept or how it uses and manages digital evidence.Footnote 64 In its practice, the Working Group has dealt with evidence and information in digital formats, including both scanned documents and originally electronic documents. However, questions that may arise concern how the Working Group evaluates and stores such evidence, in line with principles of data integrity, authenticity, confidentiality and quality, as well as the source’s privacy where applicable.
In this respect, the Council of Europe’s guidelines on electronic evidence in civil and administrative proceedings provide examples of good practices, including those aimed at assuring authenticity and avoiding falsification.Footnote 65 The Office of the High Commissioner for Human Rights (OHCHR’s) submission form for other UN human rights special procedures also accepts digital evidence, and does not limit this to printable materials.Footnote 66 Furthermore, the Working Group on Enforced or Involuntary Disappearances (WGEID) is currently studying the use of new digital technologies, including digital evidence, in prosecutions.Footnote 67 It is expected that WGEID’s study will contribute to developing the position of other UN human rights mechanisms in relation to the use of digital evidence in proceedings.
On the other hand, the UNTB online submission portal for individual communications only accepts certain file formats and is limited to printable materials.Footnote 68 Although this is a technical matter, it can result in restricting the ability of sources (claimants) to provide cogent evidence regarding human rights violations, such as contemporary videos and photos.
Substantively, digital evidence – such as video footage and social media posts – features frequently and with increasing significance in international criminal trials and international human rights investigations.Footnote 69 The Working Group is increasingly confronted with such materials, particularly in the context of protests, where footage can help provide insights which written materials may not capture or effectively convey. However, the Working Group has not adopted a specific approach regarding digital materials to date. Other UNTBs have also not yet adapted their formal procedures in this respect. As digital evidence becomes more ubiquitous, the UNTBs and the Working Group will have to become more accustomed in practice and procedure to accommodating their use.
5.4.3 Use of External Materials in Determining Cases
The Working Group engages in independent fact-checking under its regular communications procedure. Though it has repeated that its role is not to substitute itself for a domestic fact-finder, it does consider various reputable sources in its evaluation of factual narratives by parties.Footnote 70 Beyond referencing its jurisprudence and findings from country visits, the Working Group appears to increasingly reference third-party information for both procedural and substantive purposes.
Technically, there are no explicit limitations in this respect. The Working Group may reference reports by other UN bodies engaging on the same or similar cases, or other credible sources about relevant developments on a specific case.Footnote 71 This may include referencing any joint communications from UN special procedure mandate holders and related press coverage to highlight the urgency of the situation, as in the case concerning the Government of Malaysia’s treatment of Mr. Khan.Footnote 72 For substantive reasons, the Working Group may reference authoritative sources evidencing historic discrimination and emerging patterns of human rights violations involving arbitrary deprivation of liberty.Footnote 73 As a case in point, the Working Group has identified an emerging pattern involving the arbitrary deprivation of liberty of dual nationals in Iran, referencing the findings and reasoning of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran.Footnote 74 More recently, the Working Group cited the latest findings from the Human Rights Council’s Universal Periodic Review and other reports related to Algeria to support its reasoning on the discriminatory detention of Mr Soudad.Footnote 75
This use of external materials in determining cases is consistent with the Working Group’s flexible approach to evidence, based on assessing the ‘totality of the circumstances’.Footnote 76 It also demonstrates that despite its specific mandate, the Working Group sees its work as essentially complementary to other international justice-seeking efforts, both within the UN system and beyond.
UNTBs could adhere to the same approach. Beyond enhancing fact-finding, this has the potential to contribute to the Working Group and UNTBs’ efforts to better coordinate within the UN system. Furthermore, it can foster cohesion and consistency across the law, institutions, and practice of the contemporary human rights regime. Finally, this can lead to significant advances in specific cases and help serve the broader goal of harmonious jurisprudential development in the field of human rights.
5.4.4 Standards Applied During the Working Group’s Own Fact-Finding
As with its opinions, the Working Group has not yet fully addressed what standard of proof it applies during country visits for fact-finding. The Working Group’s Methods of Work and Terms of Reference for Country Visits are both silent in this sense. However, the Code of Conduct for Special Procedures Mandate holders of the Human Rights Council states that mandate holders shall ‘always seek to establish the facts, based on objective, reliable information emanating from relevant credible sources, that they have duly cross-checked to the best extent possible’.Footnote 77 It further states that mandate holders shall ‘rely on objective and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions they are called upon to draw up’.Footnote 78 A similar provision is included in the Manual of Operations of the Special Procedures of the Human Rights Council.Footnote 79 The Manual further requires mandate holders to assess the reliability of the information and of the person(s) providing the information collected during interviews with victims and witnesses of human rights violations.Footnote 80 Overall, this may suggest that the Working Group should apply a standard of proof that is deemed appropriate on a case-by-case basis.
A review of recent country visit reports indicates that the Working Group issues its conclusions on the basis of having more evidence supporting findings than contradicting them.Footnote 81 For example, when concluding that there are discrepancies between domestic legal provisions in principle and practice, the Working Group relies on its own observations and the testimonies collected during a visit, sometimes corroborated by third-party reports, as reason enough to disprove information shared by official authorities in the country under consideration.Footnote 82 Yet, in some cases, the Working Group appears to apply a higher standard of proof by looking for clear and convincing evidence – that is, significantly more evidence supporting a finding and limited information suggesting the contrary. For example, the Working Group has concluded that some facilities visited were not places of deprivation of liberty on the basis of its interviews with both the officials in charge and the residents in such facilities.Footnote 83 In other cases, the Working Group has concluded that it was ‘not clear’ whether the information gathered amounted to arbitrary deprivation of liberty and invited stakeholders to submit further information.Footnote 84 This may impact the uptake of the Working Group’s findings.Footnote 85 Therefore, the Working Group should consider the application of a set standard of proof and clarify its evidentiary considerations for country visits. It should also address its standard of proof at the outset of its country visit reports, following its general remarks about the visits’ programmes.
In this regard, it should be noted that a balance of probabilities standard (often expressed as ‘reasonable to conclude’ and equivalent to a ‘preponderance of evidence’, or ‘convincing evidence’ standard) charts a careful course for human rights monitoring and litigation. This standard is likely to be the most coherent standard of proof to apply in most circumstances, because of the inherent limitations of fact-finding mechanisms coupled with the interests at stake.Footnote 86
The balance of probabilities standard fits well, as it must naturally be higher than the preliminary prima facie threshold but lower than a criminal standard of beyond reasonable doubt. Regarding the latter, victims and complainants should not be held to the same level of proof as police and prosecution services, as they do not have the same access to investigative materials and techniques.Footnote 87 The balance of probabilities standard matches that applicable in many types of civil claims. It is achievable for complainants, particularly if evidentiary presumptions are adopted, such as not requiring the complainant to produce a document or piece of information to which they would not reasonably have access. It is nevertheless also a robust standard capable of providing some insulation against reaching incorrect and ill-founded conclusions, which would open human rights bodies up to claims of inconsistency, selectivity, opacity and unconscious biases.Footnote 88
Hence, explicitly adopting the balance of probabilities standard would place the Working Group on a defensible footing, while ensuring that its approach is transparent. Similarly, other human rights bodies, such as UNTBs, could benefit from the combination of reliability and flexibility provided by this evidentiary standard.
5.5 Impact of the Working Group’s Changing Approach to Evidence
There are a number of indicia to gauge the impact of the Working Group’s approach to evidence, namely compliance with decisions, state responses and the responses of other third parties such as UNTBs and regional human rights courts. These indicia will be examined in the subsections below.
5.5.1 Compliance
In the context of the Working Group, compliance is primarily an issue of releases of arbitrarily detained persons, though the Working Group also typically calls for compensation to be afforded to them. Fundamentally, it is the release of persons found to have been arbitrarily detained which signals States’ commitment to redressing arbitrary detention. Historically, compliance has been hard to measure. However, a rough evaluation can be made from the fact that in the 2022 Annual Report, the Working Group noted that it had learned of approximately 22 individuals subject to its opinions being released in the reporting period, during which it had issued 88 opinions.Footnote 89 In 2023, there were 38 releases and 77 opinions issued, a significant increase on the year before.Footnote 90 In preceding years, that rate appears relatively stable. This only gives an approximate assessment of compliance, as there are also forms of implementation which are less easily quantifiable, such as adhering to Working Group recommendations to bring domestic laws into line with international human rights law.Footnote 91 Nonetheless, broadly speaking, the rate of implementation of the Working Group’s findings could be roughly seen as hovering somewhere around 20–40 per cent. In that light, the Working Group’s compliance rate falls broadly within the range of UNTBs with individual complaint mandates, which Ullman and von Staden have measured as between nineteen and thirty-nine percent.Footnote 92
By comparison, for regional bodies, there appears to be great variation in the rate of compliance: around 50–60 per cent for the (ECtHR) but only 6–14 per cent for judgments of the Inter-American Court of Human Rights.Footnote 93 More broadly, at the ICJ, which is increasingly being confronted with human rights-related claims, the compliance rate has been 49 per cent for provisional measures orders, but seems to have fallen in recent years as it takes on more contentious cases.Footnote 94
States have indicated that the quality, coherence, and correctness of human rights bodies’ decisions are key factors in encouraging compliance.Footnote 95 Achieving rigorous standards in these respects is heavily reliant on access to reliable evidence. If the materials on which the Working Group must base its assessments are unreliable and lacking in probity, then it will be difficult to reach any firm factual conclusions on which to superimpose the legal standards governing arbitrary detention. For this reason, the Working Group has increasingly sought to tighten its approach to evidence, to ensure cogency and consistency in its findings. A similar rigour on the part of the UNTBs will assist in enhancing the legitimacy, acceptance and impact of their determinations.
5.5.2 State Responses
Another indicator from which to gauge the uptake of the Working Group’s opinions, including reactions to its approach to evidence, is via state responses. On a number of occasions, the Working Group has been confronted with States questioning its determinations.
For example, in the context of the Working Group’s 2002 country visit to Australia, disputed issues ranged from legal questions concerning the incorporation of international human rights law into Australian domestic law, to motivational questions concerning the purpose behind Australia’s immigration policy,Footnote 96 to specific factual issues, such as whether detainees were generally handcuffed when leaving immigration facilities.Footnote 97 The Australian Government accused the Working Group of including ‘inaccuracies’ and ‘incorrect’ statements in its country visit report, making assumptions and inferences, and reporting unsubstantiated allegations.Footnote 98 The Working Group responded by noting that its information is received from a variety of sources and that it establishes facts in ‘as objective and impartial’ a manner as possible in the limited time available.Footnote 99
This exchange highlights the subtle but important difference between the Working Group’s information-gathering function and its quasi-judicial individual complaint function. Information-gathering, such as through country visits, is an open and evolutive process which culminates in recommendations.Footnote 100 Conversely, the consideration of individual complaints has a more judicial character. The submissions of the parties are compared, before the Working Group ultimately sets out in its disposition whether violations of the relevant legal instruments have occurred. These approaches adhere to the Special Procedures Code of Conduct, which, as noted above, provides that in their fact-finding activities, Special Mandate holders should seek objective, reliable information from relevant credible sources and cross-check them as far as possible.Footnote 101 The Code of Conduct also specifies that Special Mandate holders’ information-gathering functions have a distinct character from the quasi-judicial consideration of individual complaints, such as those conducted by the Working Group.Footnote 102
In the context of the Working Group’s individual complaints procedures, its approach to determining facts has also been challenged on occasion. For example, the United States of America accused the Working Group of reaching conclusions which were ‘unsubstantiated’, based on ‘false facts’ and a ‘fundamental misunderstanding of our law’,Footnote 103 in a 2002 case concerning the detention of two Indian nationals.Footnote 104 However, the United States Government had only provided general arguments which ‘merely described the current procedure under United States law without providing any information on the individuals in question’.Footnote 105 Ultimately, according to the Working Group, ‘the misunderstanding seem[ed] to be rather on the American side’,Footnote 106 as the State only presented specific and detailed information regarding the case after the deadline for its response had elapsed and after the Working Group had rendered its opinion. Through this adherence to a structured procedure, the Working Group insulates itself against inaccuracies and unfounded critiques. Both parties are given an opportunity to present their views in line with the principle of audi alteram partem (each side must be heard), but with time limits designed to facilitate the efficiency and finalisation of proceedings.
In an example illustrating the role of time limits, the Government of Cameroon expressed its dissatisfaction that the source’s submissions were summarised in thirty-two paragraphs in a 2016 opinion, whereas the Government’s submissions were limited to just one paragraph.Footnote 107 However, the Government overlooked that it had submitted its response one month late, thus violating the Working Group’s adversarial procedure.Footnote 108 Nonetheless, the reference to the Government having ‘duly’ submitted its response may have caused confusion, and is not a term the Working Group would typically use in present times to describe a late-filed submission. Consequently, whereas the Working Group’s adherence to its procedures helped to insulate it in this specific case, it highlights the need to ensure clear messaging in subsequent opinions, which has been the case.
Following the issuance of a Working Group opinion in 2019, finding that Rwanda had arbitrarily detained two women, the Government complained that the Working Group had reached erroneous conclusions and was ‘fundamentally flawed’.Footnote 109 In this case as well, the Government failed to provide a timely response, meaning the Working Group could not place as much weight on the response as if it were timely filed,Footnote 110 in line with the established jurisprudence.Footnote 111 Nonetheless, the Working Group assessed the specific allegations and found some had been established and others not. In particular, the Working Group dismissed the claims of discrimination based on a pattern of harassment due to a lack of information indicating a connection with the State.Footnote 112 Again, this exchange highlights the importance of the Working Group’s rigorous adherence to its adversarial procedures, particularly in relation to the receipt and weighing of evidence. The Working Group’s adversarial procedure, in which both parties have the opportunity to submit their views, does not make it infallible but does insulate it against allegations of inaccuracy and lacking objectivity.
5.5.3 Responses of UNTBs and Regional Human Rights Bodies
A further means of assessing the Working Group’s approach to evidence is via the response of external entities such as UNTBs and the regional human rights courts. Based on the Working Group’s well-developed approaches to evidence, its views are cited by regional human rights courts. For example, the ECtHR has mentioned the Working Group’s opinions or the reports of the country visit in many cases,Footnote 113 and considers the analysis of the Working Group when the same case is under the consideration of the Working Group.Footnote 114A highly pertinent example is the ECtHR judgment in Ibrahimov and Mammadov v. Azerbaijan.Footnote 115 In this case, the Working Group had met the applicant in the Baku pre-trial detention facility on its country visit to Azerbaijan. The ECtHR quoted the statement of the Working Group that it ‘observed what seemed to be physical sequels of such treatment’.Footnote 116 The ECtHR used this statement in consideration of the credibility of the applicant’s claim. Noting that the claim was supported by the Working Group’s report,Footnote 117 the ECtHR found that ‘there is prima facie evidence in favour of the applicants’ version of events and that the burden of proof shifts to the Government to provide a satisfactory and convincing explanation’.Footnote 118
The above shines an important light on how the Working Group’s approach to evidence affects its impact. This can provide insights for the UNTBs as well. Whereas compliance rates provide a form of quantitative indicia, States’ responses provide a more qualitative explanation as to why certain determinations are well received, and whether the issues relate to procedure or substance or a mix of the two. The analysis demonstrates that the quality and consistency of fact-finding conducted by quasi-judicial human rights bodies such as the Working Group and the UNTBs is a major factor impacting on competent authorities’ uptake of their determinations. Additionally, the use of UNTB and Working Group findings by regional human rights bodies is important for the cross-fertilisation of approaches to evidence, as the Working Group itself has not.Footnote 119
5.6 Conclusions
Over the three phases of its operations, the Working Group has elaborated a clear but flexible approach to evidence and burdens. Since it explicitly spelled out its approach to burdens and evidence in its 2011 Annual Report, the Working Group’s formulation has been increasingly repeated and refined to the point where it has become essentially a uniform component in its opinions. This contributes to the legal consistency and predictability of its opinions. Nonetheless, issues regarding the Working Group’s approach in cases involving heightened review, digital evidence, materials from external sources and its own fact-finding are increasingly emerging as factors to address during this consolidation phase of its operations. Ensuring consistency is not just important for the coherence of the Working Group’s jurisprudence, but also for the uptake and implementation of its decisions and recommendations by governments which hold persons in detention. In line with Helfer and Slaughter’s observations regarding the quality of legal reasoning as a controllable means of inducing adherence to human rights rulings, mechanisms established to provide quasi-judicial human rights determinations must accentuate the consistency and cogency of their outputs, including ‘the legal language itself: the language of reasoned interpretation, logical deduction, systemic and temporal coherence’.Footnote 120
In relation to adherence to its determinations and recommendations for redress, the Working Group faces considerable challenges. This is highlighted by comparison with other international bodies. For example, unlike the ICJ, the Working Group’s jurisdiction is not based on the consent of the relevant government(s) to its proceedings, which generally can be expected to increase compliance rates.Footnote 121 Accordingly, compliance is far more dependent on the quality and persuasiveness of the Working Group’s assessment and opinions and the perceived fairness of its procedures. Prior consent to the bodies’ jurisdiction (as exists for the UNTBs) is a factor which should naturally lead to higher compliance rates. However, the quality of the body’s issuances and the reasoning therein will be important factors for those advocating for greater uptake of the quasi-judicial human rights bodies’ decisions. As Giorgetti has noted: ‘If the losing party finds that the substantive part of the judgment is understandable and that the court listened to its arguments, it will make it easier to comply.’Footnote 122 The development of a consistent, coherent and predictable procedure during the three phases of the Working Group’s existence enhances the persuasiveness of the position it arrives at in specific cases while at the same time raising the reputational costs inherent in ignoring its determinations.
This is particularly important for the Working Group’s cases, where there is typically a vast power and resource gap between the government and the detained person. Adhering to the Working Group’s calls to release the person and provide reparation will largely come down to the relevant government’s acceptance of the validity of the reasoning behind the determination, along with individual factors regarding the detained person and the nature of the crimes for which they may have been arrested.
Moreover, like the UNTBs, the Working Group does not have a direct procedure enabling it to send cases to the United Nations Security Council (UNSC) for enforcement. Efforts to enforce ICJ judgments via the UNSC can be vetoed by any of the permanent five members, as occurred with the Court’s judgments in the Nicaragua case, for example.Footnote 123 However, for the vast majority of States in the world, the mere possibility of being brought before the UNSC for not complying with an ICJ decision is a strong compliance pull factor. In theory, the Working Group could report a lack of compliance to the Human Rights Council, which in turn could report this to the United Nations General Assembly. In practice, though, this would rarely be done, particularly in light of debates over the bindingness of the Working Group’s opinions.Footnote 124 This observation highlights the relevance of formal enforcement structures attached to human rights adjudicative bodies, as well as the impact of a rigorous approach to evidence and the law on improving implementation prospects.
Bearing in mind these external comparisons, the Working Group’s operations can serve as a canary in the coal mine for emerging evidentiary issues which are increasingly becoming important for human rights litigation. As the Working Group continues to engage with the problem of arbitrary detention and build its credibility in the international human rights community, it may consider implementing the following recommendations:
1) First, the Working Group should consider a more explicit elucidation of the heightened review test and state whether this impacts factual determinations, particularly in category V (discrimination) cases, and particularly when intersectional issues arise.
2) Second, the Working Group should consider including a plain-language explanation of its approach to evidence and the standards and burdens it applies and should make this information available on its website and any other relevant official communications, as well as its model questionnaire. This will help individuals, NGOs, governments and other actors make the best use of the complaints and urgent appeals procedure. It may also clarify whether the Working Group applies the same test for fact-finding during country visits as it does during the assessment of individual complaints.
3) Third, the Working Group should explicitly set out the balance of probabilities standard as the approach it applies to individual cases and to its broader fact-finding functions, including during country visits.
4) Fourth, the Working Group should consider its specific approach to digital evidence, including what type of digital evidence the Working Group accepts, and how it evaluates and stores it. This should align with principles of data integrity, authenticity, confidentiality and quality, as well as the sources’ privacy, where applicable.
Implementing these recommendations would allow the Working Group to gain an even greater acceptance as an authoritative international arbiter and make an even greater contribution to the global effort of protecting individuals from arbitrary detention.
Over four decades ago, renowned human rights expert Louis Henkin claimed that ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’.Footnote 125 While that was debatable at the time, it is clear that since then, compliance with international law has not become universal, and if anything, has deteriorated in many respects. Unfortunately, the field of human rights has not been spared this fate. Nonetheless, compliance can be achieved in many instances, making it all the more important that human rights bodies address the factors within their control. One of these is the rigour and consistency applied to assessing factual claims. In this respect, the Working Group’s approach to evidence highlights a robust and dependable methodology, which is sufficiently flexible to account for the wide variety of cases it receives, while also being clear in its core parameters in most respects. However, a close examination of the Working Group’s approach to evidence highlights areas in need of further clarification, as well as specific challenges on the horizon, regarding which adjustments have been suggested in this chapter. Through an ongoing assessment and refinement of its approach to evidence, the Working Group can provide a model for other human rights bodies, including UNTBs, to examine and potentially utilise in their own important efforts to universalise human rights compliance.
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