9.1 Introduction

In legal literature, stereotypes are usually described as generalisations ‘about the attributes or characteristics possessed by, or the role that is or should be performed by, members of a particular group’.Footnote ¹ While stereotypes are often associated with inaccurate evaluations and misrepresentations of reality, their connection with evidentiary issues has not yet been fully explored in legal scholarship. Current research has especially focused on the impact of gender (and other) stereotypes on the adjudication of human rights more broadly, without attention being paid to evidence.Footnote ² Yet, many judgments, from various regional courts and bodies, demonstrate that stereotypes can prevent proper ascertainment of the facts of a case. They may lead to relevant pieces of evidence being ignored, irrelevant circumstances being given undue weight or higher standards of proof being imposed than would have otherwise been the case.

The Convention on the Elimination of Discrimination against Women (CEDAW), which was adopted in 1979,Footnote ³ has played a pivotal role in advancing women’s human rights by addressing gender stereotypes as one of the manifestations of discrimination rooted in unequal power relations, particularly through Articles 2 (f) and 5 (a). Article 2 (f) requires states to modify or abolish laws, regulations and practices that constitute discrimination against women. Article 5 (a) makes explicit reference to the stereotyped roles of men and women and prejudices or practices based on the idea of the superiority of either of the sexes. It requires states to take all necessary steps ‘to modify social and cultural patterns of conduct of men and women’ with the aim of eradicating these discriminatory practices.

As illustrated below, the Committee tasked with the implementation of this Convention – namely the CEDAW Committee – has made it clear that gender-based stereotypes may not only be conveyed through individual acts but also in laws, social structures and institutions. The Committee has shown remarkable determination in actively using its mandate to interpret and develop legal obligations on states to combat gender stereotypes. Through its general recommendations, as well as its views on individual communications submitted under the Optional Protocol to CEDAW,Footnote ⁴ the CEDAW Committee is paving the way for a deeper understanding of stereotypes in law and shedding light on the interplay between gender stereotypes and access to justice.

This chapter engages with the CEDAW Committee’s approach to stereotypes and evidence by providing an overview of the Committee’s contribution to the definition of their interaction. It does so by reviewing selected views delivered on gender-based violence, a domain where the Committee itself has expressed concern about the pervasive negative impact of stereotypes in undermining women’s access to justice.

Following this introduction (Section 9.1), a critical discussion of evidence law is first set out in Section 9.2. This aims to unpack the gendered assumptions embedded in this field and sets the stage for an examination of how gender stereotypes connect to debates about factual construction and the rational evaluation of evidence. Section 9.3 goes on to provide an overview of CEDAW’s framework for addressing gender stereotypes. It specifically focuses on the right to access to justice and how the CEDAW Committee’s General Recommendation 33 enabled a better understanding of the interplay between stereotypes and evidence. The section then delves into the Committee’s relevant jurisprudence. Section 9.4 offers an alternative approach to this interaction, which entails examining the impact of stereotypes through the concept of legal presumptions. This is followed by concluding thoughts and recommendations on the matter in Section 9.5.

9.2 Stereotypes and Evidence: An Emerging Issue

As the legal literature on stereotypes has consistently stressed, judgments should be based on law and facts, rather than myths, stereotypes and preconceived ideas.Footnote ⁵ Yet, is there a single, objective way to interpret law and facts? This question is far more complicated than the literature depicts it to be, evoking a classic debate in legal scholarship on how we conceive law, facts and the relationship between them as determinate categories. This debate assumes facts to be objective materials to be discovered and mechanically subsumed into a non-contested legal definition.

This section will delve into these ideas and their relevance for the study of stereotypes, with a twofold objective. First, it will expose how some tenets of evidence law systematically render women’s accounts unsound. Second, it will introduce the issue of stereotyping into a broader discussion about factual construction and its challenges.

Theories of factual construction have problematised assumptions about how facts enter the judicial process: how they are perceived, selected for their relevance and evaluated, with this whole process affected by the socio-cultural background of the legal actors involved in the trial.Footnote ⁶ Beyond the application of rationalist criteria of logic, scientific laws and maxims of experience, evaluating evidence is a process that involves a wide margin of discretion.Footnote ⁷

While modern legal theory has tended to altogether ignore the quaestio facti (the issue of factual construction), legal hermeneutics has shed light on the intertwined relationship between law and facts, and the way they mutually influence each other’s determination in the judicial process.Footnote ⁸ Causality, temporality, cultural dimensions and rules of language are shown to shape the interpretation of reality, thus undermining the pretence of an objective and unique factual account. The cultural dimension, in particular, concerns ethical and religious perspectives, social values, scripts and stereotypes that provide narrative frameworks to guide factual construction in a coherent way.Footnote ⁹ A narrative appraisal of the judicial process as composed of stories told by different parties is apt to reveal how factual components are likely to be selected and organised in accounts that are consistent with cultural frameworks, common sense, and regularities (id quod plerumque accidit, or common occurrences). This consistency makes the story appear plausible and coherent.

These theories have contributed to exposing the cultural contingency embedded in adjudication. Yet, they have not pushed their critique further and exposed how the rationalist tradition of evidence discourse and its assumptions about a universal and self-evident understanding of truth, rationality and justice, systematically erase the experiences of socially oppressed groups.Footnote ¹⁰

Against this background, critical legal theories have exposed the false objectivity and neutrality of legal methods and the rules of evidence. They have examined adjudication not as mere perception of the facts as raw material, but as a process that ‘purvey[s] truth’.Footnote ¹¹ Feminist legal theorists, in particular, have unpacked the assumptions underlying the dichotomic framing of procedural and substantive law, with the former being conceived as the domain of pure logic and rationality, and the latter being the place where politics belong. In exposing how method shapes substance,Footnote ¹² feminist theorists have questioned our ‘ways of knowing’ in law,Footnote ¹³ reformulating questions that bring original perspectives to the field. Instead of asking how value judgments exceptionally succeed in polluting law – portrayed as the realm of inherent objectivity – feminist discourse purports that power hierarchies are originally embedded in evidence law. This shift exposes a number of assumptions and mechanisms of the rules of evidence that systematically erase women’s voices: the preference for physical over psychological evidence, direct over indirect evidence, presence over absence, continuity over discontinuity.Footnote ¹⁴ Moreover, evidence law builds on the assumption that truth is accessible to any unbiased observer who shares with the community a set of ‘universally accepted generalisations about human behaviour’.Footnote ¹⁵ Thus, the idea of a ‘universal competence’ presents a hegemonic view of human behaviour as if it were universal, when in fact, women’s experiences and those of other subordinated groups differ from the dominant view. These experiences are thus silenced, or viewed as irrational or illegible.Footnote ¹⁶

In addition, the linear conception of truth as ‘singular, immediately apparent, and permanent’ has historically undermined the credibility of women’s accounts of sexual violence.Footnote ¹⁷ Reliance on assumptions about internal consistency, narrative coherence, hard or physical evidence and the stability of storytelling over time has contributed to shaping a notion of truth detached from women’s experiences of these violations.Footnote ¹⁸

At the core of feminist and critical approaches lies a common understanding that law in general, and evidence law in particular, is built on pre-existing social inequalities.Footnote ¹⁹ Ignoring this premise makes it difficult to understand why human rights violations perpetrated against the oppressed often remain invisible. Instead, critical theorists advocate for alternative understandings of knowledge, rationality, and truth that allow the experiences of the oppressed to make sense and regain value.Footnote ²⁰

Debates about stereotypes and stereotyping resonate with those concerning factual construction and the assumptions underlying the ascertainment of factual truth during adjudication (and beyond). Following the seminal work of Cook and Cusack on stereotyping in international human rights law,Footnote ²¹ legal research has consistently referred to stereotypes as generalised views or preconceptions about the attributes, characteristics or roles that women and men should possess or perform.Footnote ²² Their harmfulness is usually associated with making assumptions about an individual simply based on their membership in a particular social group. While anti-stereotyping theories in law date back to the 1970s,Footnote ²³ lawyers and theorists still struggle to identify the boundaries between stereotypes and other concepts such as stigma, prejudice and bias, and even generalisations, which are widely used in law.Footnote ²⁴ In addition, much scholarly work is devoted to gender and intersecting stereotypes in international human rights adjudication,Footnote ²⁵ while less research has focused on stereotypes based on other grounds of discrimination.Footnote ²⁶

Moreover, while stereotypes are often associated with misrepresentation of individual characteristics, and in general with inaccurate or false representations of reality, few contributions have paid attention to the specific impact of stereotyping on the assessment of facts and evidence in national and supranational jurisdictions.Footnote ²⁷ The first study to provide an overview of the varied ways in which stereotypes may impact probative issues was commissioned by the Office of the High Commissioner for Human Rights in 2013.Footnote ²⁸ The report focused on gender stereotypes and the adjudication of gender-based violence cases, pointing to how stereotypes affect the perception of facts. In particular, stereotypes impact perceptions of who is the victim and who is the aggressor, the culpability of the persons accused and the credibility of witnesses. They also affect the issues to be determined at trial, and may lead to the admission of irrelevant or highly prejudicial evidence, or to unjustified weight being attached to certain evidence.Footnote ²⁹

The need to improve gender-sensitive training for judges, prosecutors and other legal actors involved in the justice system has led to the development of protocols and professional manuals that provide more in-depth analysis of the interplay between stereotypes and evidence.Footnote ³⁰ There have also been important developments in how international human rights bodies understand the impact of stereotypes on access to justice – and in particular, on evidentiary matters – that demand scholarly attention. In this light, the following sections explore developments at the CEDAW Committee with regard to gender stereotypes and their impact on evidence.

9.3 Lessons from the CEDAW Committee

Within international human rights law, CEDAW provides a legal framework to combat gender stereotyping in view of achieving substantive equality. Article 2 (f) and Article 5 (a) explicitly require states parties to modify or transform gender stereotypes and eliminate wrongful stereotyping.Footnote ³¹ These have been interpreted as freestanding provisions but also as sources of an overarching and cross-cutting obligation to be read in conjunction with other human rights.Footnote ³² The CEDAW Committee has specified that the elimination of discrimination is an obligation with three dimensions: (1) ensuring there is no direct and indirect discrimination in both public and private spheres; (2) improving women’s de facto equality; and (3) addressing prevailing gender relations and the persistence of gender-based stereotypes.Footnote ³³ According to the Committee, gender-based stereotypes ‘affect women not only through individual acts by individuals but also in law, and legal and societal structures and institutions’. The obligation to address gender stereotypes binds the contracting state and its apparatus, including judges, prosecutors and law enforcement officials.Footnote ³⁴ It also extends to taking positive action against stereotyping by non-state actors and individuals (Article 2 (e)).Footnote ³⁵

This obligation was applied in connection with the right to access to justice in the leading case Vertido v. The Philippines.Footnote ³⁶ In this case, the Committee held the Philippines accountable for gender stereotyping by the judiciary, which affected the victim’s access to a fair and just trial. The Committee observed that ‘the judiciary must take caution not to create inflexible standards of what women or girls should be or what they should have done when confronted with a situation of rape based merely on preconceived notions of what defines a rape victim’.Footnote ³⁷

This principle has been repeatedly affirmed in subsequent views. It was also recalled in General Recommendation 33, which clarified the obligations to address gender stereotyping to guarantee the right to access to justice.Footnote ³⁸ In this recommendation, the CEDAW Committee considered the right to access to justice to be a bridge between substantive and procedural law and an essential component for the realisation of all the rights enshrined in the Convention. Acknowledging that access to justice in its various dimensions is currently hampered by obstacles related to structural discrimination and inequality,Footnote ³⁹ the Committee highlighted that gender stereotyping and procedural and evidentiary requirements are among the factors that constitute such obstacles.Footnote ⁴⁰ It further held that reasoning based on gender stereotyping impairs the justice system, as it ‘distorts perceptions and results in decisions based on preconceived beliefs and myths rather than relevant facts’.Footnote ⁴¹ Recalling the principle laid down in Vertido v. The Philippines, the Committee contended that by creating rigid standards of evaluation of human behaviour, gender stereotypes have a detrimental impact on the credibility given to women’s accounts as parties and witnesses.Footnote ⁴² All these elements can cause judges to misinterpret or misapply laws and compromise the impartiality and integrity of the justice system, leading to miscarriages of justice.Footnote ⁴³

Since its adoption, this General Recommendation has become a useful tool to further substantiate the Committee’s findings regarding gender stereotyping and elaborate specific recommendations to states parties. In subsequent communications, the Committee has interpreted the anti-stereotyping obligation in relation to other limbs of Article 2, which were invoked by the authors,Footnote ⁴⁴ even without a specific mention of Article 5 (a) on some occasions.Footnote ⁴⁵

While CEDAW lays itself open to some criticisms with specific reference to stereotypes and stereotyping (e.g. the absence of definitions),Footnote ⁴⁶ the Committee’s work has provided greater visibility to the negative impact of stereotyping in women’s rights adjudication. The Committee has also developed a more comprehensive approach to the issue in its recommendations.Footnote ⁴⁷ However, there remains more to be done regarding the naming of the specific stereotypes at play, exposing the inferences they trigger, and articulating the specific harms they cause.Footnote ⁴⁸ Despite this last limitation, CEDAW and the work of its Committee have deservedly become a reference in international human rights law for addressing gender stereotypes.Footnote ⁴⁹

This section will now discuss how the Committee has improved its reasoning on the impact of stereotypes on evidence. It does so by examining a set of individual communications which, submitted under the Optional Protocol, have resulted in a decision on the merits. Only communications where stereotypes were affecting the evidence and the Committee was seeing, naming and addressing this connection have been selected for analysis. In addition, only communications from the jurisprudence on gender-based violenceFootnote ⁵⁰ were sought, as this is the field where the Committee has expressed most concerns in terms of the negative impact of gender stereotypes on access to justice.

These cases illustrate the polluting effect of gender stereotypes on evidence at various stages of the legal proceedings, from investigations to the trial phase. Stereotyped reasoning often results in incomplete and biased investigations, where relevant facts and evidence are not collected. This already puts victims of gender-based violence at great disadvantage in proving their cases and seeing their right to access to justice fulfilled. At trial, stereotypes may shape how the factual hypothesis is constructed, the weight given to certain facts and evidence, and the distribution of the burden of proof.

Shortcomings in the collection of evidence to substantiate the charges stand out as particularly problematic in gender-based violence cases. While the circumstances in which certain crimes are perpetrated (usually a private setting) might partially preclude the availability of witnesses, the prompt collection of other relevant pieces of evidence is also jeopardised by a stereotyped understanding of the facts. The Committee has adjudicated several communications that displayed these issues at the investigation stage, such as the failure of the police to record incidents of violence or collect witness statements, or denials or delays in opening investigations.Footnote ⁵¹ Although earlier views did not explicitly recognise how stereotypes would have created evidentiary hurdles, they recognised that discriminatory narratives distorted the perception of the circumstances that amount to gender-based violence, including the profiles of victim and aggressor.Footnote ⁵² Thus, stereotypes hampered the investigation and collection of evidence by law enforcement officials. This nexus was made explicit in Vertido, and later in V.K. v. Bulgaria (respectively, cases of sexual assault and domestic violence). In the latter case, the Committee pointed out that ‘exclusive focus on physical violence and immediate threat to the life or health of the victim reflects a stereotyped and overly narrow concept of what constitutes domestic violence’.Footnote ⁵³

Many individual communications before the Committee also point to a biased assessment of evidence during the trial phase of domestic proceedings. This has taken place through practices such as reliance on irrelevant facts over relevant ones based on stereotyped views; selective consideration of evidence based on whether it confirms or contradicts stereotyped hypotheses; and stereotyped assessments of the author’s credibility.

The following paragraphs will examine the evolution of the Committee’s case law on stereotyped evidence. Reviewing the cases chronologically, the analysis aims at assessing whether the Committee’s reasoning has captured the impact of stereotypes on evidence in its various manifestations, and whether it has reached a rigorous and consolidated standard for its adjudication.

A first phase can be identified when the Committee was able to detect shortcomings in domestic authorities’ consideration of available evidence, but could not connect these to hints of stereotyped reasoning. In Goekce v. Austria,Footnote ⁵⁴ a case of domestic violence that ended in femicide, the Committee rightly pointed to the disconnect between abundant evidence of serious danger to the life of the author and the failure of the State to exercise due diligence to protect the victim.Footnote ⁵⁵ However, the Committee did not consider that the submissions warranted further findings on Articles 1 (anti-discrimination provision) and 5 (anti-stereotyping provision). The fact that the public prosecutor withdrew the charges based on the assumption that threats were a regular feature of the couple’s disputes, as well as the inability to ascertain which spouse started the violence, would have deserved additional analysis.Footnote ⁵⁶ The normalisation of violence within a couple and the argument of mutual conflict are recurrent discriminatory narratives that serve to downplay the severity of the violence perpetrated against women and overshadow its roots in the gender roles that relegate women to inferior social status. Another case of domestic violence that ended in a fatal stabbing, Yildirim v. Austria, was adjudicated on the same day.Footnote ⁵⁷ Similarly to Goekce, here the Committee noticed a contradiction between the dangerous situation the victim faced and the inaction of the local authorities that led to the femicide.Footnote ⁵⁸ However, it did not explore whether this contradiction could have been motivated (and normalised) by a stereotyped understanding of violence.Footnote ⁵⁹ The contradiction in the State’s reasoning is apparent: while not disputing the death threats and the ineffectiveness of the police orders and interim injunction, the State still considered it disproportionate to issue an arrest warrant, since the aggressor ‘had no criminal record and was socially integrated’.Footnote ⁶⁰ At this early stage of the Committee’s evolving approach towards stereotyped evidence, both the stereotypes of the ‘ideal victim’ in Goekce and the ‘ideal perpetrator’ in Yildirim went unnoticed, as the Committee explicitly refused to analyse the cases under Article 5.

Vertido v. The Philippines marked a shift in the Committee’s anti-stereotyping analysis and signalled a more explicit understanding of the link between stereotypes and probative issues. As Cusack and Timmer have pointed out, part of this shift is attributable to the author’s success in exposing the connection between stereotypes and the contradictions in the assessment of evidence carried out by the domestic court.Footnote ⁶¹ Following the author’s narrative, the Committee was able to retrace the link between stereotypes and assumptions that undermine the author’s credibility and impair the evidentiary process. Examples include assuming consent from lack of resistance to the assault or acquaintance with the aggressor; assuming rape accusations can be made with facility (the stereotype of fabrication); and giving less credibility to rape allegations based on the perpetrator’s age.Footnote ⁶² In this case, the author was a female executive director at the local chamber of commerce who had been raped by the president of the chamber. Her testimony was not believed by the domestic criminal court because she did not comply with the behaviour of the ‘ideal victim’. One year later, the Committee took this approach further in another key case, V.K. v. Bulgaria. Here, it explicitly found a link between gender stereotypes and the domestic court’s narrow conception of domestic violence, which led the latter to apply a higher standard of proof and place an excessive burden upon the author.Footnote ⁶³ In particular, the domestic court had refused to issue a permanent protection order against the author’s husband, based on the assumption that striking someone may amount to violence ‘only after breaking certain limits of abuse’.Footnote ⁶⁴ According to the court, the author had not demonstrated that those limits were surpassed. The Committee found that this stereotyped understanding of domestic violence had led the court to neglect the history of verbal, economic and psychological abuse documented by the author.Footnote ⁶⁵

Compounded stereotypes might pose extra obstacles for assessing a victim’s credibility. This is demonstrated in R.P.B. v. the Philippines, an individual communication submitted by a young girl who was deaf and mute. Her account had been assessed by domestic courts against the standard of an ‘ordinary Filipina female rape victim’.Footnote ⁶⁶ According to a ‘reasonable standard of human conduct’ proclaimed by the domestic court, such an ideal victim should have ‘summon[ed] every ounce of her strength and courage to thwart any attempt to besmirch her honour and blemish her purity’.Footnote ⁶⁷ Here, the Committee rightly pointed out that the guiding principles derived from judicial precedents in deciding rape cases amounted to gender stereotypes. In particular, the stereotype of the ‘ideal victim’ impaired the victim’s credibility assessment and led the court to disregard her individual circumstances (i.e. disability and age).Footnote ⁶⁸

The Committee also found a connection between stereotypes and a biased assessment of facts and evidence by domestic authorities in González Carreño v. Spain. This was a case of domestic violence that resulted in the killing of a young girl by her father during court-authorised visitation. The domestic authorities had dismissed evidence of the danger posed by the father to the safety of his daughter and ex-partner, in favour of inconclusive reports submitted by social services.Footnote ⁶⁹ The Committee found that domestic authorities’ stereotyped conception of visitation rights ‘gave clear advantages to the father despite his abusive conduct and minimized the situation of mother and daughter as victims of violence’.Footnote ⁷⁰ This was also connected to the incoherence which the Committee observed between the authorities’ actions and the evidence submitted.Footnote ⁷¹ Yet, the Committee did not point out specific gender stereotypes that could have motivated the authorities’ inaction or the selective weighing of evidence, such as the stereotypes that violence is normal between (ex-)partners or that women fabricate accusations and their accounts are not reliable. This case certainly advances a welcome line of reasoning, but following Vertido, a more explicit and articulated discussion could have been expected.

These early cases planted the seeds of a better articulation of the stereotype-evidence link. However, the Committee’s analytical approach in this regard is far from consolidated. An example of inconsistency can be seen in a case adjudicated only one year after Carreño. In X. and Y. v. Georgia,Footnote ⁷² the Committee did not delve into the stereotypes underlying the prosecutor’s decision not to open a criminal investigation into domestic violence. These stereotypes could be seen in the emphasis placed on the good reputation of the aggressor, and on his social position as a student and businessman. Both elements distanced him from the ‘ideal aggressor’ standard. The violence was also viewed as a ‘permanent conflict’ that ‘did not surpass the normal framework of attitude within the family’.Footnote ⁷³ Moreover, the minor daughter – who was a victim of violence herself – gave statements confirming the beatings, but these were put into question by a psychological assessment (considered to be produced by an authoritative source). This finding reflects the stereotype that depicts both women and minors as inherently unreliable.Footnote ⁷⁴ Additionally, the Committee remained silent on the State party’s view that the author and the grandmother ‘brainwashed’ their children, ‘causing them to testify against their father’.Footnote ⁷⁵ This could be read in conjunction with the attempt to depict the author as mentally unstable, as both elements concur in her negative credibility assessment. While the author explicitly denounced the existence of a socio-cultural pattern of conduct which ‘accord[s] greater weight to the word of a man and accept[s] a level of physical violence and sexual touching as being within the realms of acceptable parenting for a man’,Footnote ⁷⁶ the Committee did not address the issue of selective weighing of evidence. Furthermore, it did not explicitly connect the lack of objective standards for assessing prima facie evidence, or the failure to gather and present evidence impartially, to underlying gender stereotypes about women’s voices. It did, however, interpret several of these shortcomings as placing an extremely high burden of proof upon the author.Footnote ⁷⁷ Nonetheless, the Committee in this case fell short of detecting and challenging a number of visible stereotypes, and missed the opportunity to discuss their effect on evidence, even though it had done so in previous views.

Just a month after X. and Y., the Committee adopted its General Recommendation 33. It seems to be no coincidence that the views adopted afterwards mark an improvement in the analysis of the connection between gender stereotypes and evidentiary issues. This link is better delineated, for example, in L.R. v. Republic of Moldova, a case regarding the State’s failure to carry out a prompt and effective investigation into domestic violence.Footnote ⁷⁸ The author argued that the State had given insufficient weight to her statements and had not heard her witnesses or assessed her supporting documentary evidence. The Committee found that the domestic court’s reasoning, which led to the denial of protection, had been biased. This was based on the Committee’s consideration that the court had misinterpreted the violence as a civil dispute; given undue weight to the accused’s good references; interpreted the contradiction between the parties’ accounts with prejudice to the author; and disregarded medical and forensic evidence produced by her.Footnote ⁷⁹ Furthermore, the author’s attempts at seeking justice had resulted in a police officer reporting her as a family troublemaker, which undermined her credibility at trial. Moreover, prosecutorial authorities had focused on her mental state and even attempted to force her to undergo in-patient psychiatric testing – an additional sign of how women’s accounts are not deemed credible.Footnote ⁸⁰ Domestic authorities had also neglected relevant facts such as the protection order granted to the author, as well as witness statements and records of ambulance and police services which had responded when the accused attempted to strangle the author.Footnote ⁸¹ According to the Committee, all these elements – undisputed by the State – indicated that the decisions at domestic level had been based on stereotyped notions of domestic violence.Footnote ⁸² However, the Committee did not explicitly name the specific stereotypes underlying the case – such as the interpretation of women’s reactions to domestic violence as irrational, or the assumption that their claims are fabricated.

The stereotype-evidence link was finally made fully explicit in two cases in 2018. X. v. Timor-Leste concerned the criminal trial of a victim of domestic violence who claimed to have acted against her abuser in self-defence.Footnote ⁸³ The criminal proceedings had been fraught with serious negligence in the collection of evidence of domestic violence and its subsequent handling. The Committee explicitly pointed out that despite a retrial being granted to allow a due consideration of self-defence, ‘[judges] allowed gender stereotypes and bias to affect the weighing of evidence in the second trial, in particular by lending the author’s voice less credence than that of her nephew, who had not been present at all relevant times’.Footnote ⁸⁴ Similarly, in J.I. v. Finland, a case involving domestic violence and child custody proceedings, the Committee expressly pointed out how stereotypes pollute the rational assessment of evidence: by undermining the claims and evidence of the victim/survivor, while simultaneously supporting the defence arguments advanced by the alleged perpetrator.Footnote ⁸⁵ Recurrent elements appeared in this case too: from the biased attitude towards the author and her statements (she was subjected to a psychiatric assessment and depicted as a hostile mother), to the neglect of evidence of violence, with prejudicial impact on custody arrangements.Footnote ⁸⁶ In both cases, the Committee made extensive reference to General Recommendation 33 to support the stereotype-evidence link.

A preference for evidence submitted by the aggressor over that submitted by the victim was also at the core of S.T. v. Russian Federation.Footnote ⁸⁷ Yet, the anti-stereotyping reasoning in this case was not entirely rigorous and left some problematic aspects untouched. While the Committee read the shortcomings in evidentiary evaluation as products of stereotyped reasoning, it missed the opportunity to challenge some specific arguments. For example, it remained silent on the prosecutor’s request to mitigate the classification of the crime. This had been based on a psychiatric examination that excused the violent attack as an explosion of affect stemming from the loss of authority of the accused within the family.Footnote ⁸⁸ This line was followed at trial by the court and led it to dismiss the victim’s claim for compensation. Moreover, the court accused her of provoking and humiliating the aggressor through litigation and thus being responsible for the attack she suffered. In a narrative framework where hitting a woman with an axe was interpreted as a ‘nervous breakdown’,Footnote ⁸⁹ a woman’s attempts to seek justice were viewed as hints of ‘systemic amoral behaviour’ that worked to excuse the behaviour of the aggressor.Footnote ⁹⁰ A more careful analysis would have been needed here to unpack the provocation argument, and to highlight the greater probative value attached to authoritative sources – in this case, the positive description of the aggressor by the mosque administration.

The unquestioned preference for evidence produced by authoritative parties (e.g. medical staff, social services, police officers) is another specific manifestation of the selective evaluation of evidence. These parties are generally assumed to be acting in the interests of the patient/client/victim, even when other evidence disproves this assumption. In S.F.M. v. Spain, a case of obstetric violence, the Committee acknowledged that stereotyped and thus discriminatory notions led the domestic authorities to assume that the doctor should decide whether or not to perform an episiotomy, despite lack of consent and evidence of non-compliance with lex artis (the current state of medical knowledge).Footnote ⁹¹ Regrettably, the Committee did not explicitly name this stereotype in its conclusion, although the author did mention that women are stereotyped as incapable of making their own choices and are treated as passive objects with a reproductive role.Footnote ⁹² The Committee further addressed the preference for evidence by authoritative parties in the recent case of A.F. v. Italy.Footnote ⁹³ In this case, a woman alleged she was sexually assaulted by a police officer, to whom she had previously reported an assault by her ex-husband. The Committee acknowledged that the decision to overturn his conviction for lack of evidence could be explained by stereotypes that led the domestic court to give uncritical preference to the accused’s evidence.Footnote ⁹⁴ In particular, the court had re-interpreted the hospital report and the psychologist’s diagnosis showing the possibility of rape as evidence of the accused’s seductive ability. Conversely, the author’s prompt reaction in collecting evidence after the assault was interpreted to suggest a fabricated accusation.Footnote ⁹⁵ Importantly, the Committee noted the striking difference between the treatment of the author’s evidence in contrast to that of the accused, as well as their contradictions. Indeed, while the author’s revisions were interpreted as lies, ‘the accused [could not] be blamed for his divergent explanations’.Footnote ⁹⁶

As emerges from this overview, the analysis of the stereotype-evidence link has not followed a linear or consistent path. Following the adoption of General Recommendation 33, this analysis has improved and the Committee’s views have highlighted examples of selective weighing of evidence and preference for evidence submitted by the accused or produced by authoritative sources. In some cases, the link between these evidentiary hurdles and stereotypes is made explicit. In others, it emerged implicitly as a contradiction between facts presented and evidentiary findings at the domestic level. In other words, the Committee’s approach in this regard requires further consolidation.

The extent to which the authors draw attention to stereotypes and their evidentiary effect may contribute to explaining the Committee’s inconsistencies in its approach. Some submissions, like those in Vertido, R.P.B., S.F.M., and A.F., see the authors meticulously exposing and analysing the stereotypes behind each biased assessment made by domestic authorities. In other instances, the authors leave the stereotypes at issue unnamed, but invoke general gender-related myths of how women must behave,Footnote ⁹⁷ gender bias,Footnote ⁹⁸ or the Vertido formula regarding judicial creation of inflexible standards of behaviour for victims.Footnote ⁹⁹ While more articulated reasoning by authors on stereotype-related violations of CEDAW is welcome, this should not have to stand in for the Committee’s ability to carry out its own anti-stereotyping analysis. The Committee should systematically name and contest stereotypes, as a necessary step before examining the impact of stereotypes on evidentiary findings.Footnote ¹⁰⁰ Its present lack of systematicity is problematic, the more so as the Committee specialises in gender-based discrimination.Footnote ¹⁰¹ Clearer indications on its part as to what stereotypes are and the extent of the harm they produce would improve its own anti-stereotyping reasoning, as well as serving as guidance for other international bodies .

9.4 Exploring Stereotypes through Legal Presumptions

Given the widespread impact of stereotypes on the evidentiary domain, this final section seeks to explore how arguments and practices stemming from stereotypes might map onto legal mechanisms, which provide them with an appearance of soundness. Using the González Carreño communication before the CEDAW Committee as a case study, the analysis focuses on the hybrid mechanism of the legal presumption, which displays both evidentiary and substantive traits.Footnote ¹⁰² This comparison between stereotypes and legal presumptions illustrates the connections between stereotypes and evidentiary issues that the CEDAW Committee should be able to detect and challenge as forms of discrimination. In particular, the Committee should be aware that gender stereotypes may prevent the ascertainment of truth at trial by introducing ready-made narratives that resist contrary evidence, in a way similar to legal presumptions.

Presumptions are mechanisms deployed in judicial reasoning out of necessity, when it is not possible to ascertain a fact by direct evidence. De facto presumptions are mere inferences or arguments based on generalisations, usually drawn from empirical regularities or scientific knowledge. Legal presumptions, on the other hand, are characterised by foreclosing the ascertainment of truth, through substituting an unknown fact that should be ascertained with another (known) fact.Footnote ¹⁰³

Rebuttable (or relative) presumptions establish a provisional truth, whereby the presumed fact is temporarily established, until contrary evidence is submitted. Such presumptions might be established by law or by the judiciary. They do not necessarily reflect a regularity or probability, but might rather stem from social and political reasons. For example, the presumption of paternity of children born in wedlock does not necessarily reflect empirical facts, but serves the social function of protecting children’s interests. Notably, relative presumptions possess both constitutive and regulatory aspects: they contribute to shaping legal meanings or ‘constituting the presumed fact into an institutional outcome’.Footnote ¹⁰⁴ For example, the abovementioned presumption of paternity produces legal effects based on marriage between the parents without proof of paternity being required. Relative presumptions are also procedural rules which indicate the distribution of the burden of proof to the judge and the parties at trial.Footnote ¹⁰⁵ In contrast, absolute presumptions establish an irrebuttable truth by requiring a fact to be viewed as corroborated on the basis of the mere occurrence of another fact. No effort is made to verify the actual situation, and there is no possibility to submit any contrary evidence.Footnote ¹⁰⁶ Absolute presumptions do not fulfil any epistemic function and are more likely to shape legal categories and definitions.

Legal presumptions of both kinds share a constitutive feature, by which they can shape the elements of a legal definition. This highlights the pertinence of the interplay between evidence and substance. When gender stereotypes guide the selection of relevant facts, they also influence legal definitions of what amounts to, for example, violence and discrimination. The circular dynamic between the evidentiary and the substantive dimensions exposes how relevance itself is shaped by stereotyped frames, and how these frames might affect the boundaries and content of legal definitions. An analysis of the González Carreño case can be used to illustrate how stereotypes act as presumptions, with stereotypes also establishing provisional or even absolute truths, thereby allowing discriminatory views to hamper the rational evaluation of evidence.

González Carreño was one of the first cases adjudicated by the CEDAW Committee that problematised the treatment of violence in custody proceedings and called into question the primacy given to a father’s interests over the best interests of the child. As previously recounted, the case concerned the murder by a man of his daughter during an unsupervised visit authorised by the domestic court.Footnote ¹⁰⁷ In the proceedings at domestic level, it appeared that national authorities had granted more weight to accounts from social services while completely neglecting the numerous domestic violence complaints filed by the author (the girl’s mother).

This case illustrates how gender stereotypes may distort the evaluation of evidence, with evidence provided by the accused being privileged over that submitted by the victim, and inconclusive evidence being granted more weight than other consistent pieces of evidence. In Carreño, this was exemplified by the treatment of the reports from social services as opposed to the evidence provided by the author. The reports by social services contained a self-contradictory assessment of the father’s parental capacity. For example, it was mentioned that he lacked empathy; had difficulty properly interacting with his daughter; used his child to transmit messages of animosity to the mother; and showed signs of an obsessive-compulsive disorder. Nevertheless, the social services, as well as the domestic court that relied on their assessment, seemed satisfied with a minimum display of affection from the father and dismissed other evidence to the contrary. The court thus concluded that there was a need to restore the relationship between father and daughter. Contrary evidence which was ignored included around thirty complaints filed by the mother, which had resulted in a conviction for harassment, as well as protection orders issued in favour of the mother and daughter.

Such an irrational assessment of evidence can only arise from the stereotype/presumption that women are untrustworthy, as they are considered more emotional and less rational than men. This stereotype usually underlies inferences that women tend to fabricate false allegations, that they create hostility or alienate their children from the father or that they are responsible for provoking violent attacks on themselves or their children. Originating from the idea of the inferiority of women, such narratives undermine the credibility of women and the relevance of the evidence they submit.

Closely linked to the public/private division, the stereotype of women as primary caretakers underpins the very different standards against which mothers’ and fathers’ parenting capacity is measured, as also apparent in González Carreño. Mothers are subjected to pervasive scrutiny of their behaviour.Footnote ¹⁰⁸ They are expected to be collaborative and facilitate the relationship between children and father, usually by sacrificing their own physical and psychological well-being. In contrast, fathers’ behaviours are often not scrutinised. In some cases, they are not even held accountable for their negative actions, nor are they compelled to improve their parental abilities.Footnote ¹⁰⁹ In the González Carreño case, the father did not comply with his maintenance obligations, nor with protection orders. He also engaged in behaviours which were detrimental to his underage daughter. However, none of these circumstances compelled the national authorities to take action, or at least consider them as relevant elements in their assessment.

As the Committee noted in González Carreño, national courts, social services and psychological experts were moved by the purpose of normalising the relationship between father and daughter, despite the reservations expressed about the behaviour of the father.Footnote ¹¹⁰ The CEDAW Committee identified this pattern of action as a ‘stereotyped conception of visiting rights based on formal equality’, which ‘gave advantages to the father despite his abusive conduct and minimized the situation of mother and daughter as victims of violence, placing them in a vulnerable position’.Footnote ¹¹¹ In other words, the domestic authorities used the principle of joint custody not in light of the best interests of the child, but to guarantee the privileges and entitlements of the (male) head of the family. This reaffirmed the gender hierarchy by which the father’s superior role justified submission of and violence against mother and children.

Judicial practice may normalise these abusive behaviours by either neglecting or trivialising their importance, and leaving them without legal consequences. The effects are those of a legal presumption: on the level of evidence, the stereotyped reading of joint custody establishes that men – setting the standard of rationality – are presumed to be good parents. This truth is hard to rebut, since gender stereotypes usually lead to downplaying or discarding contrary evidence as irrelevant (even criminal convictions and restraining orders, as was the case in González Carreño).Footnote ¹¹² Unless there is hard, physical evidence that domestic violence occurred, or that it affected the child directly, it is presumed that a father has a right to a relationship with his child that almost nothing can curtail.

On the level of substantive law, such judicial practice shapes the legal boundaries of desirable fatherhood by portraying violence, neglect or lack of affection as tolerable features of fathers’ parenting.Footnote ¹¹³ Normalisation is reinforced by impunity and lack of consequences when parental obligations are not fulfilled, as happened in the Carreño case. This judicial presumption is so strong and pervasive that commentators have suggested that in order to counteract it, a legal presumption against contact should be instituted in cases of domestic violence.Footnote ¹¹⁴

Gender stereotypes in child custody proceedings in situations of domestic violence work to downplay women’s accounts of violence and their attempts at seeking protection. They filter and transform accounts of violence into irrational claims, through accusations of parental alienation and certain uses of joint custody that conceal male privileges. Either the credibility of allegations of violence is undermined, or the blame is shifted onto women. Overall, gender stereotypes work to protect gender norms and hierarchies within the family that relegate women to silence. This is achieved by systematically suppressing all attempts to ascertain the truth – a feature of absolute presumptions. Looking at gender stereotypes through legal presumptions sheds light on the issues of selective weighing of evidence, and might be helpful in detecting this specific feature of stereotypes. The CEDAW Committee should be more aware of these evidentiary issues, and adopt a more assertive role in examining the inconsistencies it finds and their connection to stereotyped understandings of gender roles.Footnote ¹¹⁵

9.5 Conclusion

This chapter has shed light on the way gender stereotypes can negatively affect the rational evaluation of evidence and eventually compromise the adjudication of women’s human rights. The analysis of individual communications has pinpointed different examples of how stereotypes lead to a systematic disregard of women’s statements and evidence, which manifests through contradictions between the domestic courts’ evaluation and the evidence produced. Engaging in more rigorous analysis of the factual construction (quaestio facti) is a crucial step towards ensuring that stereotyped arguments do not impair access to justice and to a fair trial.

The CEDAW Committee has made progress in its stereotype-evidence analysis, with some remarkable examples in its recent case law. That said, its anti-stereotyping reasoning needs to be further consolidated. Naming and contesting specific stereotypes is crucial to allow subsequent scrutiny of domestic judgments to ensure that any discrimination can be properly redressed.Footnote ¹¹⁶ This is still a pending task for the CEDAW Committee, which often seems to rely on the authors’ work to identify the stereotypes underlying problematic arguments, without adding to or clarifying the content and inferences attached to them. While authors’ activism is key to exposing the contradictions embedded in the evaluation of evidence, the Committee should strengthen its own independent ability to detect stereotypes and the circumstances when they pollute evidence, irrespective of the author’s characterisation. This is paramount if the Committee seeks to develop a more solid anti-stereotyping approach in the future.

A more robust and consistent anti-stereotyping reasoning is also essential for the subsequent assessment of its evidentiary effects. The Committee is not alone in this endeavour – other regional bodies and judicial authorities should also be encouraged to make efforts to identify and challenge the stereotypes underlying all phases of the proceedings. The Committee – as a specialised body – could offer them guidance. A starting point could be to pay attention to selective weighing of evidence and preference for authoritative sources. These are two evidentiary issues that could be investigated in connection with other grounds of discrimination (e.g. race and ethnicity, disability, age), and in relation to human rights violations beyond gender-based violence.

In developing a stronger anti-stereotyping approach, it may be instructive for the Committee to more closely consider how stereotypes prevent the ascertainment of truth in a way that is similar to the functioning of (mostly) absolute presumptions. This kind of comparison can shed light on the full extent of the effects that stereotypes may have, particularly in the evidentiary domain. With a better understanding of their effects and harms, a more nuanced, articulated conceptualisation of stereotypes in law can be elaborated. Without this effort, courts and judicial bodies lack an important standard to examine discriminatory practices and their impact.

10.1 Introduction

In the absence of an international human rights court, the Human Rights Committee’s (HRC or the Committee) monitoring state compliance with the International Covenant on Civil and Political Rights (ICCPR or the Covenant) is widely regarded as the United Nation’s (UN) most authoritative and lawlike human rights monitoring mechanism.Footnote ¹ Yet, surprisingly, little is known about how the Committee goes about creating its ‘jurisprudence’ on the communications that individuals initiate against states that have signed the ICCPR’s Optional Protocol.Footnote ² In particular, there is limited insight into how the Committee assesses the veracity of data submitted by the authors of communications, or how the Committee determines whether such data form reliable evidence.

This chapter sheds light on this issue by exploring how the Committee approached the evidence in two cases: Näkkäläjärvi et al. v. Finland (2018)Footnote ³ and Sanila-Aikio v. Finland (2018).Footnote ⁴ Both cases were ostensibly about the inclusion of new voters on the electoral roll of the Sámi Parliament, the highest political decision-making body on matters relating to the Sámi Indigenous people.Footnote ⁵ Underlying this issue were two more general questions: (1) Who is an Indigenous Sámi in Finland, and (2) in case of contestation, who has the authority to answer this question?

Two specific numbers – 93 and 512,000 – acquired special significance in the processing of the two communications. As for the first, ninety-three persons were added to the Sámi Parliament’s electoral roll by the Finnish Supreme Administrative Court (SAC or the Court) in 2015. In other words, in the eyes of this Court, ninety-three persons had satisfactorily proven that they fulfilled the legal criteria of being Sámi. The authors of Näkkäläjärvi et al. and Sanila-Aikio contested this, which led them to lodge a complaint before the HRC. As for the second number, the authors of Näkkäläjärvi et al. argued that, were the SAC to continue with the interpretive line it had adopted in regard to the ninety-three persons referred to above, more than half a million Finnish persons, out of Finland’s population of 5.5 million inhabitants, could be eligible to be included in the Sámi electoral roll, thereby significantly weakening Indigenous self-determination. The advanced figure of 512,000 new voters is as dramatic as it is inaccurate. In its examination of the two communications against Finland, the Committee nonetheless reproduced this figure without questioning its origin or reliability, thereby letting it acquire the status of an uncontested fact in the two communications’ aftermath.

The two numbers 93 and 512,000 are used in this chapter as analytical entry points to reflect on the processes of translation that distance evidence from Committee members as they deliberate on individual communications, such that the second enormous and dubious figure is allowed to develop a life of its own in the Committee’s proceedings. This leads us to raise broader questions regarding the evidentiary regimes of the HRC and the other UN treaty bodies (UNTBs), particularly their fact-checking abilities. The chapter also highlights the importance that intermediaries who act as counsel in communications hold for the Committee’s deliberations. It finally reflects on how the evidentiary regime of the HRC produces and supports certain subjectivities while downplaying and eliminating others, simultaneously inflicting harm on the eliminated subjectivities.

Both Sanila-Aikio and Näkkäläjärvi et al. v. Finland are connected to long-standing and still ongoing controversies around the Sámi people in Finland. These cases are also only the latest in a long list of communications that the Sámi people have submitted against the State of Finland to different UN bodies.Footnote ⁶ One type of controversy underlying these communications is connected to how the State of Finland and the wider society treat – or, rather, continue to oppress – the Sámi.Footnote ⁷ The other type is related to internal contestations within the Sámi community over who is regarded as belonging to the Sámi community.Footnote ⁸ Importantly, the latter controversy exists mainly – but not exclusively – between registered and non-registered members of the Sámi community. As our case studies illustrate, these contestations are anchored in the question of who is allowed to join the Sámi Parliament’s electoral roll, thereby being able to vote for and get elected to the Sámi Parliament.

We show how, in the Committee’s argumentation, the first type of controversy – general treatment of the Sámi by Finland – becomes dominant, whereas the second type – relating to internal tensions and power struggles within the Sámi community – is erased from view, being only fleetingly referenced in the communication dossiers. The invisibility of these internal tensions is linked to the dominant assumption within the human rights field that Indigenous peoples are internally united, giving rise in turn to an assumption that it would be possible for Indigenous peoples to elect a small number of representatives who would harmoniously and homogeneously convey their (uniform) views and interests to different political entities and/or other bodies. As this chapter shows, this is not the reality: the Sámi Parliament is full of differences in views, as is the case with any other people.

Basing our analysis on a close reading of the text of the views adopted by the Committee in the two cases, as well as indirectly drawing on Miia Halme-Tuomisaari’s ethnography of the CommitteeFootnote ⁹ and Reetta Toivanen’s ethnographic research with the Sámi,Footnote ¹⁰ we explain how the HRC reached outcomes that only considered and made visible the concerns of registered members of the Sámi people, thus leaving out those of non-registered Sámi. This is something that existing legal analyses of the two cases have not highlighted.Footnote ¹¹ From a perspective that takes into account the complexities of social worlds, we attempt to decipher how the HRC may let itself be swayed by dubious evidence, producing unfortunate outcomes. This leads us to make some observations about the way the evidentiary regime of the HRC generally works.

To date, most scholarly contributions on UNTBs have been written by legal scholars, many of whom are former treaty body members.Footnote ¹² This has resulted in a strong legalistic emphasis and an absence of more holistic analyses that take into account the complexities of social worlds. A similar gap exists in regard to how individual communications are processed, including what data are accepted as evidence in the Committee’s reflections. These observations also apply to our two selected case studies, which to date have been analysed from an exclusively legal angle. This chapter contributes to existing scholarship by building on the past two decades of anthropological work on international organisations and human rights.Footnote ¹³ Particularly important is existing – albeit limited – anthropological work on UNTBs, including the Committee on the Elimination of Discrimination against Women,Footnote ¹⁴ the Committee against Torture (CAT),Footnote ¹⁵ and the Committee on the Elimination of Racial Discrimination (CERD).Footnote ¹⁶ In addition, our chapter builds on the vast scholarship on the Sámi people,Footnote ¹⁷ as well as recent work on Indigenous peoples and their rights struggles.Footnote ¹⁸

Translation forms our broader theoretical lens for analysing the processes by means of which distinct pieces of information are accepted as forming facts in the HRC’s proceedings.Footnote ¹⁹ One part of the translation process is figurative and aesthetic, including formatting documents to comply with the logic and structure of UN style, including the ‘rubrics of classification and graphic elements such as paragraphs, tables, subtitles, fonts, margins, and bullets’.Footnote ²⁰ These aesthetic elements form surface graphics that ‘serve a range of semiotic functions’,Footnote ²¹ conferring legitimacy on the data submitted to the Committee as providing reliable information.Footnote ²² Another part of the translation takes place when UN secretariat staff compress broader case material into synthesised summaries shared with Committee members, thereby removing the original material from the Committee members’ reach when they are deliberating on the communications’ merits.Footnote ²³

A pivotal part of translation regards actual linguistic translation from one language to another, a process that likewise distances original data from Committee members. The general language of operations for the HRC, as well as UN human rights monitoring bodies in general, is English.Footnote ²⁴ This choice of language is neither always voluntary nor neutral: for example, NGO caucuses are typically held in English only because NGOs cannot afford translators. The shortage of resources reproduces the privileged position of the powerful English-speaking actors, emphasising their elite nature. Information provided by states parties to complement state reports in other languages may be overlooked, as resources do not permit the translation of all material. Thus, UN reality both reflects and strengthens the dominance of English as the lingua franca, reproducing the privileges and exclusions linked to its competence among different groups of actors participating in the sessions of the HRC and the other UNTBs. Yet, the original language of data and evidence that the Committee relies on is commonly in another language; in the cases at hand, it is Finnish. Only very few, or even none, of the relevant UN staff and HRC members likely have the necessary linguistic skills to examine documents in Finnish, which is neither an official UN language nor widely spoken worldwide. These observations raise the question: On the basis of what sources do Committee members receive information or form understandings on data that are not accessible to them, such as the ninety-three cases from the Finnish SAC that are at the core of the communications on Näkkäläjärvi et al. and Sanila-Aikio?

10.2 ‘The Closest to a Future World Court of Human Rights’: Introducing the Human Rights Committee

The HRC was founded in 1976 when the ICCPR entered into force, after having been opened for signature in 1966.Footnote ²⁵ The Committee has stabilised its position as one of the UN’s – and, by extension, the world’s – most authoritative human rights bodies. The Committee, together with the other nine UNTBs monitoring the main UN human rights covenants, including the ICESCR, CRC, CAT and CEDAW, has established itself today as forming the steady pulse of UN human rights monitoring that brings abstract human rights ideals to life.

Submission of individual communications is stipulated in the ICCPR’s first Optional Protocol, which has been ratified by 117 of the 173 states that have ratified the ICCPR.Footnote ²⁶ The views that the Committee issues on the basis of its deliberations on the communications’ merits are themselves legally non-binding on states.Footnote ²⁷ The submission criteria for individual communications illustrate a complex relationship to the law that characterises the Committee’s operations more generally.Footnote ²⁸ As the website of the UN Office of the High Commissioner for Human Rights (OHCHR) outlines, the basic idea of the UN individual complaints mechanism is its openness to any layperson from a ratifying country.Footnote ²⁹ In line with this idea, the formal submission guidelines stress that, in order to submit a communication, one need not be a lawyer or even be familiar with legal and technical terms. In practice, legal competence is paramount, both in order to get the communication deemed admissible and to get the Committee members to grasp the communication’s merits. Translation acquires importance here also: in order to become visible and thus admissible to the HRC, an issue needs to be ‘translated’ into ‘UN reality’.Footnote ³⁰

In regard to individual communications submitted to the Committee – as will be illustrated by our two case studies – this translation process entails identifying what kind of human rights violation has occurred specifically. It must also be identified how the individual rights of the applicant (denoted in Committee terms as the author) were violated under the ICCPR’s provisions.Footnote ³¹ Translation also entails the use of correct bureaucratic discourse. This discourse is often ‘impersonal and anonymous on the basis of lexical and semantic features: the prevalence of passive verbs, abstract nouns and the like’.Footnote ³² In our analysed cases, this translation process is significant for the authors’ attempts to construct a ‘collective agency from the agency of individuals’Footnote ³³ by claiming to represent all Sámi people – claims that the Committee overlooks in its emphasis on individual Covenant violations. In utilising the right bureaucratic discourse, legal competence is often crucial. Consequently, in practice, many authors – including Tiina Sanila-Aikio – have legal counsel representing them. For her, this counsel was a former member of the HRC who, on this experiential basis, had insider knowledge on how to make a communication visible and admissible for the Committee.Footnote ³⁴

The HRC discusses individual communications in sessions that are closed to outside observers. The only people present at the hearings are members of the Committee, relevant UN secretariat staff, interpreters and possibly Committee members’ interns. After deliberations, the Committee adopts views that are shared on the website of the OHCHR. To protect the authors, no exact transcripts of the Committee’s deliberations are shared with outsiders.

10.3 The Sámi and the Sámi Parliament: A Complex Question of Inclusion

The cases of Näkkäläjärvi et al. and Sanila-Aikio are the latest in a long list of communications that the Sámi Indigenous peoples have sent to the HRC and other UN monitoring bodies, such as the CERD. Despite the fact that the Finnish Government has strengthened the rights of the Indigenous Sámi people in Finland through several laws, the exercise of these rights continues to be severely hampered in practice – notably when it comes to the right to take part in decision-making on local and national levels.Footnote ³⁵ International human rights treaties, especially those that deal with minority rights, have long been relied upon by Sámi activists.Footnote ³⁶ Given that the European Court of Human Rights takes the view that the European Convention on Human Rights offers few legal bases to tackle cases concerning minority rights, European minorities – and Indigenous peoples especially – have put faith in the UN system. In terms of Article 27 of the ICCPR, the HRC has the legal grounds to receive Indigenous complaints in particular. The first decision by the HRC involving Sámi rights dates back to 1985 (Kitok v. Sweden)Footnote ³⁷ and was followed by nine communications from persons identifying as Sámi from the three Nordic countries (Finland, Norway and Sweden).Footnote ³⁸ Whereas none of these cases has been able to substantially promote self-determination, they have together contributed to strengthening recognition of the emerging rights of Indigenous peoples.

The Sámi are one of the peoples traditionally living in the Barents region in the Arctic. They share their living space with other local peoples who have lived in the territories for several generations and newcomers.Footnote ³⁹ Politically, the Sámi have worked together since 1956 in the Sámirád̵di̵ (Sámi Council, earlier the Nordic Sámi Council) to strengthen their voices vis-à-vis the majority states of Norway, Sweden and FinlandFootnote ⁴⁰ – and in recent decades, Russia as well – after a long period during which Sámi cultural rights and languages suffered under strong assimilation policies and practices.Footnote ⁴¹

While the majority of Sámi today live in Norway, approximately 10,000 live in Finland.Footnote ⁴² From a legal perspective, the status of the Sámi as an Indigenous People was acknowledged in the Constitution of Finland in 1995 section 17.Footnote ⁴³ In the same year, the Finnish Sámi Parliament was established by the Act on the Sámi Parliament.Footnote ⁴⁴ The cultural self-government body of the Sámi in Finland, the Sámi Parliament, deals with the living Sámi languages and Sámi cultures in Finland (Skolt Sámi, Inari Sámi and Northern Sámi). The scope of cultural self-determination is limited to language as well as culture revitalisation and maintenance, and the views expressed by the Sámi Parliament do not bind the Finnish Parliament. The Act on the Sámi Parliament defines the functioning and powers of the Parliament. Pursuant to section 5(1), the task of the Sámi Parliament is to ‘look after the Sámi language and culture, as well as to take care of matters relating to their status as an Indigenous People’. In matters pertaining to its tasks, the Sámi Parliament may take initiatives and make proposals to the authorities, as well as issue statements (section 5 (2)).

Ever since the Sámi Parliament was established, the question of who is entitled to vote in its elections – thereby raising the question of who is a Sámi – has remained the subject of fierce discussion and internal tensions.Footnote ⁴⁵ The core of the disagreement, very much simplified here for the sake of making the point, is partly between reindeer-herding Sámi, who settled in what is today Finland around 1860 due to the closing of Swedish and Norwegian borders, and those who were by then already settled in the uppermost parts of Finland and had mostly adopted the Finnish language due to the strong assimilation policies of schools and the Church.Footnote ⁴⁶

This history has created an internal division within the Sámi community between those who are registered Sámi, and thus enjoy the right to vote and get elected to the Sámi Parliament, and those who are non-registered.Footnote ⁴⁷ According to section 3 (a) of the Act on Sámi Parliament, ‘Sámi’ means a person who considers himself a Sámi, provided: (1) that heFootnote ⁴⁸ himself or at least one of his parents or grandparents has learnt Sámi as his first language; or (2) that he is a descendent of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp; or (3) that at least one of his parents has or could have been registered as an elector for an election to the Sámi delegation or the Sámi Parliament.

Every four years – just before new elections – hundreds of persons approach the Parliament’s electoral committee (consisting of five Sámi with electoral rights) to apply for inclusion on the electoral roll. Each time, some applications succeed, while the majority are rejected. When an applicant is rejected by the Sámi Parliament, they can complain to the SAC, which serves as the appeals court with the authority to add applicants to the Sámi Parliament’s electoral roll.

Whereas judicial appeal is generally considered an essential element of a democratic system, the role of the SAC has been criticised by some Sámi activists as threatening Sámi self-governance. Most elected Sámi parliamentarians are of the view that individuals whom they do not recognise as Sámi must be kept off the electoral roll in order to prevent further assimilation. However, some individuals recently added to the electoral roll clearly cannot be said to have weak links to the Sámi community. A striking example is that the candidate parliamentarian who attracted the most votes in both the 2015 and 2019 elections had been added to the register by the SAC only in 2011.Footnote ⁴⁹ This illustrates that many Sámi voters strongly recognise as Sámi individuals whom the Parliament has refused to recognise and register.Footnote ⁵⁰

This state of affairs, which points to internal tensions within the Sámi community, forms the backdrop of the Näkkäläjärvi et al. and Sanila-Aikio cases. These cases arose from the Sámi Parliament’s elections of 2015, prior to which the SAC had added 93 persons (out of 181 appellants) to the Sámi electoral roll. An analysis of the argumentation used by the SAC in these decisions shows that there was a shift in reasoning in 2015: previous decisions by the Court had followed the Sámi Parliament’s lead in emphasising ‘group recognition’.Footnote ⁵¹ Accordingly, to be successful, an application needed to have the Sámi Parliament’s full support. In 2015, however, the Court shifted to what it called a ‘comprehensive’ approach more ‘sensitive to human rights’.Footnote ⁵² Under this approach, the Court assumed that the person appealing was a Sámi as long as one of the objective membership criteria laid down by law was fulfilled. If this was the case, the Court would accept the applicant’s self-identification as Sámi, rather than placing evidentiary weight on the lack of recognition by the Sámi Parliament.

This new approach had been adopted as a follow-up to a negative assessment by UN human rights monitoring bodies such as CERD and the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities.Footnote ⁵³ While it was aligned with the views of these expert bodies, it did not please the Sámi Parliament. Later, it also failed to satisfy the HRC. In 2015, when the Court approved 93 applications that had been rejected by the Sámi Parliament, a crisis ensued. Ms Sanila-Aikio and Mr Näkkäläjärvi (then, respectively, sitting and former presidents of the Finnish Sámi Parliament) each submitted a communication to the HRC. They did so not only in their own names but also in the name of the Finnish Sámi Parliament and all Sámi in Finland. Although one would have expected these complaints to have been approved by the Parliament, data collected by Toivanen suggest that the parliamentarians were not aware that the complaints were being prepared and lodged. Moreover, it transpired that the two complaints had arrived at the HRC independently of each other, without one complainant being aware of the other complaint.Footnote ⁵⁴

10.4 The SAC’s Decisions: Not Necessarily Flawed

The decisions by the HRC in both Näkkäläjärvi et al. and Sanila-Aikio suggest that the Finnish SAC’s argumentation was flawed, with the Court having relied on false evidence in its reasoning and demonstrated a lack of understanding of the Sámi culture and way of life. The views in Näkkäläjärvi et al. report that ‘in a majority of those [93] decisions, the Court stated explicitly that the person did not meet any of the objective criteria spelled out in section 3 of the Sámi Act]’.Footnote ⁵⁵ It adds that ‘[t]he Court resorted to the overall consideration of the person’s own “strong” opinion in considering himself or herself a Sámi and ignored the explicit requirement of meeting at least one of the objective criteria’.Footnote ⁵⁶ It states that ‘the Court accepted evidence that relied entirely on the State party’s public administration records, such as those of church registry offices and the provincial archives of the State, and that those documents are unreliable’.Footnote ⁵⁷ Further, it claims that the Court did not take ‘into account the international obligations of Finland, especially those under the Covenant’, also ignoring relevant observations by CERD.Footnote ⁵⁸

Echoing this description, the Committee’s view on Sanila-Aikio argues that ‘the Court failed to require satisfaction of at least one of the objective criteria in the majority of cases, instead applying an “overall consideration” and examining whether a person’s own opinion about considering themselves a Sámi was “strong”’.Footnote ⁵⁹ It continues by suggesting that the Court thereby ‘infringed on the capacity of the Sámi people to exercise, through the Sámi Parliament, a key dimension of Sámi self-determination in determining who is a Sámi’.Footnote ⁶⁰ It assesses that the Court based its views on an ‘expansive application’ of section 3 of the Act on the Sámi Parliament, which resulted in ‘arbitrariness and lawlessness’.Footnote ⁶¹

Finland’s responses to these observations suggest that the latter were based on significant inaccuracies. According to Finland, the Court had ‘thoroughly assessed the special status and rights of the Sámi people, also taking into account the obligations of Finland under the Covenant’.Footnote ⁶² In Finland’s opinion, ‘t]he SAC ha[d], in its case law, paid attention to the safeguarding of the rights of the Sámi Indigenous people and its obligations under the Covenant’, consulting the board of the Sámi Parliament as well as, ‘inter alia, articles 1, 2 (1), 25, 26 and 27 of the Covenant, and the UN Declaration on the Rights of Indigenous Peoples’.Footnote ⁶³ Finland also summarised how the Court had considered CERD’s concluding observations on Finland’s ninth, tenth, and seventeenth to nineteenth periodic reports.Footnote ⁶⁴

An analysis of the SAC’s ninety-three cases supports Finland’s defence, thus showing Näkkäläjärvi et al. and Sanila-Aikio to have been misguided in having found the Court’s rulings arbitrary and overlooking relevant criteria of Article 3 of the Sámi Act. The appellants had always provided the Court with proof of at least one objective fact required by Article 3 of the Sámi Act. Often, this fact was an archival statement about their Sámi ancestry.Footnote ⁶⁵ Additionally, in most cases, the appellants could show that they satisfied the linguistic criteria of the Sámi Act (para 3.1).Footnote ⁶⁶

Thus, contrary to what Näkkäläjärvi et al. and Sanila-Aikio claim and the HRC concluded, the Court did consider the history of the Sámi people in these ninety-three cases.Footnote ⁶⁷ This consideration includes the historical reasons why people may have been removed from the relevant personnel registries, such as moving to another Nordic country or having been prevented by the Finnish authorities from using Sámi as their first language.Footnote ⁶⁸ Importantly, in a strong statement for Sámi self-determination, the SAC argued that the consequences of such assimilationist history should not be allowed to affect present-day decision-making.

In sum, Näkkäläjärvi et al. and Sanila-Aikio contain misleading information about the SAC’s decisions.Footnote ⁶⁹ All of the ninety-three persons accepted by the SAC had not only been able to produce proof of their descendancy as Sámi, but actually enjoyed group recognition. In the elections that followed in 2015 and 2019, several of them were elected as members of the Sámi Parliament.Footnote ⁷⁰ What the ninety-three cases poignantly demonstrate is the extent of the internal tensions within the Sámi community about who is considered a Sámi and who is not.

10.5 The Extravagant Number of 512,000 New Voters: Getting the Facts Wrong

These words are part of the individual opinion expressed by HRC member Olivier de Frouville in Sanila-Aikio.Footnote ⁷² De Frouville concurred with the Committee’s view that Finland had violated Article 25, read alone and in conjunction with Article 27 of the ICCPR. The purpose of his opinion was to explain why the complaint had been declared admissible, despite its author not having been personally involved in any of the ninety-three cases ruled upon by the SAC – a reasoning which also applied in Näkkäläjärvi et al., where the authors had also had no personal involvement in the court cases.

Against this background, it was unexpected that these communications would be considered admissible: usually the author of a complaint before the HRC has been a party to the domestic case which they challenge before the HRC for having failed to respect their rights under the ICCPR. Sanila-Aikio’s and Näkkäläjärvi et al.’s communications were differently anchored: their authors argued that the outcome of the cases through which ninety-three persons were added to the electoral roll of the Finnish Sámi Parliament amounted to a violation of their rights as Sámi. De Frouville’s quoted statement suggests that this mechanism could be reproduced over and over again, potentially resulting in over half a million non-Sámi people motivated by anti-Sámi economic interests being given access to the Sámi Parliament. The question arises: What is the source of this statement?

The figure ‘512,000’ is first mentioned by Näkkäläjärvi et al.’s authors in submissions summarised by the Committee as follows:

The figure is then repeated in de Frouville’s view to illustrate the threat of forced assimilation that new members of the electoral roll pose for the Sámi:

The figure re-appears a third time as the Committee summarises the merits of the communication, stating that the SAC’s decisions to include new people in the electoral roll could, ‘at least theoretically, lead to the inclusion of 512,000 non-Sámi persons on the electoral roll of the Sámi Parliament’.Footnote ⁷⁵ This is connected to the alleged existence of ‘many anti-Sámi organizations’ which are said to be ‘offering to assist ethnic Finns with applying and eventually appealing to the SAC’, which is in turn explained by a possible ‘economic interest in including a high number of non-Sámi individuals on the electoral roll to ensure the Sámi Parliament’s acceptance of large-scale projects in the areas of mining, mass tourism and infrastructure’.Footnote ⁷⁶

As already noted, Olivier de Frouville also relies on the potential 512,000 new voters in his individual opinion in Näkkäläjärvi et al. to clarify why the case deserved to be declared admissible. To him, this figure is the primary reason why the authors’ rights could be considered to be potentially violated at admissibility stage, despite the absence of a direct infringement of their rights.Footnote ⁷⁷ De Frouville appended a similar individual opinion in Sanila-Aikio, thus repeating the figure, even though it had not been mentioned by either Ms Sanila-Aikio or her counsel.

It is as if the figure of 512,000 acquires solidity in the life of these two communications through being repeated as a litany. Noteworthily, however, the original source for this number is nowhere to be found in the text of the Committee’s views. The reference to a ‘study by a mathematician’ is not accompanied by any further information as to where this study was published or conducted, nor by whom exactly – the mathematician remains unnamed. Nowhere in their texts do the views suggest that the Committee entertained any doubt regarding the veracity of this figure, despite it being extremely large, given that Finland counts no more than circa 5.5 million inhabitants. It remains entirely unclear what this figure in the Committee’s view is based on, even when it is repeated in the documents as if representing an unquestioned, objective fact.

In fact, the figure appears to be a gross exaggeration also with reference to the number of people who have actually applied to be added to the electoral roll in the last twenty-five years. The very first elections of the Finnish Sámi Parliament took place in 1999. At that time, the electoral roll had counted 5,121 Sámi persons.Footnote ⁷⁸ When their children became adults, they were automatically added to the roll, representing an increase of 436. The same year, another 1,128 people applied for inclusion in the Sámi electoral roll. The Sámi Parliament’s electoral committee accepted 100 of these applications. Of the 1,028 rejected, 765 applied for a review, which resulted in twenty-five being granted enrolment. Of the 740 rejected at the review stage, 726 appealed to the government of the Sámi Parliament, which accepted one application. Then 712 people appealed to the Sámi Parliament’s general meeting, which granted enrolment to twenty-six applicants. Finally, 656 complained to the SAC.

The SAC granted enrolment to seven applicants because of evidence that one of their grandparents had spoken Sámi as their first language. In sum, out of the 1,128 applications for electoral enrolment prior to the 1999 elections, 159 eventually were accepted and 969 rejected.Footnote ⁷⁹ Numbers remained small in subsequent years. In 2011, the SAC requested the Sámi Parliament to add four applicants who had previously been refused. In 2015, 800 persons applied to be added to the electoral roll, of whom 483 were accepted, mostly because they were adult children of persons who were already members. The 201 persons who applied to the Sámi Parliament for a review were all rejected, mostly on the grounds that the Sámi community did not recognise any of the individual applicants to be Sámi. Of these, 182 persons appealed to the SAC, which added 93 of them to the electoral roll.

This overview of the reality of people seeking to be added to the electoral roll of the Finnish Sámi Parliament shows no signs of either the potential snowball effect mentioned repeatedly in Näkkäläjärvi et al. and Sanila-Aikio, or a sudden rise in the number of applicants. The numbers given above indicate that hundreds of people – not thousands, let alone hundreds of thousands – have sought inclusion in the Sámi electoral registry. From this perspective, it appears Näkkäläjärvi et al.’s authors may have used the striking figure of 512,000 new potential voters as a scare tactic, which would have served to capture the Committee members’ attention, but without it being properly anchored in empirical reality or substantiated by evidence.

Näkkäläjärvi et al. and Sanila-Aikio misrepresent the basis on which the SAC accepted the applications of ninety-three persons in 2015, including the level of detail into which the Court went in its consideration of Sámi identity. The Committee’s views in these two cases also downplay how the Court considered the ICCPR and other relevant international covenants and standards related to Indigenous rights. In addition, our discussion above makes it clear that the HRC either did not get the correct information or did not notice the red flags that marred the whole process, starting with the fact that each applicant said they were acting in the name of the Sámi Parliament and Sámi peoples in general, but did not know about the other’s complaint.

The figure 512,000 further illustrates problems with the factual basis upon which these communications were decided. Neither view has an appendix listing the evidence that was submitted. In Näkkäläjärvi et al., the Committee simply states: ‘The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5(1) of the Optional Protocol.’Footnote ⁸⁰ The result is that, despite the number 512,000 finding no support upon empirical inquiry, the Committee ends up reproducing it as an uncontested fact, without questioning it or seeking evidence to substantiate it. By repeating the figure in both communications, the Committee increases the figure’s weight as an objective fact. This outcome gives rise to the impression that once material enters the Committee’s system and is accepted as part of the proceedings, there is no further discussion on the reliability of evidence. Any assessment as to the reliability of a particular piece of evidence is conducted at an early stage in a communication’s life cycle, which explains how the idea of 512,000 potential new Sámi voters was able to become a fact without any grounding.

10.6 Translating into Distance

How can the Committee have got the facts so wrong in these two cases? We would suggest the answer to this question must be found in processes of translation, understood both in its literal sense and more metaphorically. First, it must be noted that the ninety-three court cases from the SAC were not available for inspection by the Committee members, as the Finnish-language decisions have not been officially translated into English. What one finds instead is a summary of three of the ninety-three cases in the Committee’s views on Sanila-Aikio. Thus, when the Committee deliberated on its views, it did so without direct access to the cases as primary sources. Subsequently, in its deliberations, the Committee was reliant on how the SAC cases were summarised for the Committee by the authors of Näkkäläjärvi et al. and Sanila-Aikio. Further, the Committee members had to depend on the summaries of the communications prepared by UN secretariat staff and had no means of looking behind what is included in the background dossier.

These cases reveal that in its argumentation, the Committee places familiar emphasis on the prevailing narrative within the human rights field of states attempting to restrict the rights of Indigenous peoples while simultaneously diminishing their autonomy and possibly pushing for forced assimilation.Footnote ⁸¹ The Committee also builds on a familiar narrative of the internal unity and harmony of Indigenous communities, which are connected to nature but outside politics.Footnote ⁸² By extension, the tensions that these communications capture are cast as existing solely between the unified Sámi peoples and the dominant population as represented by the State, and internal controversies within the Sámi community are erased from view.Footnote ⁸³

This outcome legitimises the power of those segments of the Sámi people which have the majority in such institutions as the Sámi Parliament, and by extension have the authority to decide who is included in the Sámi electoral roll and who is excluded. This result distorts reality and further marginalises those Sámi people who are already marginalised, due to having been denied the status of registered Sámi by those members of the Sámi people who have the power to make these decisions within the Sámi Parliament.Footnote ⁸⁴ These two communications are deeply detrimental to those Sámi who are marginalised in internal power struggles due to having been denied the status of registered Sámi voters.Footnote ⁸⁵

The relevant question for our argument is: How is it possible that the HRC took so many misleading arguments as legal facts and was not in a position to verify the information received? One of the biggest reasons is that in the HRC, there are only two parties: the individual and the member state. In the cases of Näkkäläjärvi et al. and Sanila-Aikio, the ninety-three Sámi whose electoral rights both communications were complaining about could not submit any communication of their own, not having any recognisable legal status or ongoing controversy vis-à-vis the State of Finland. In principle, before the results of these two communications were published, they did not even know that their voting rights were being disputed at the HRC,Footnote ⁸⁶ and were not able to correct flawed information shared by the authors of Näkkäläjärvi et al. and Sanila-Aikio.

Translating felt injustices into the language of international human rights shifts their meaning.Footnote ⁸⁷ As was already noted, such monitoring mechanisms as individual complaints have ‘the capacity “to make things come into being”’.Footnote ⁸⁸ Yet, as our case studies have illustrated, such processes also ‘hide as much as [they] reveal’.Footnote ⁸⁹ In translating real life events into human rights violations recognised as falling within the scope of the ICCPR, intermediaries acquire an important role. Intermediaries can be the claimants themselves, but more importantly, they are often individuals who know the Committee’s jurisprudence well, such as former Committee members, as was the case in Sanila-Aikio. This raises the question of whether this complaint mechanism is open to everyone, or whether, due to its evidentiary regime, it ends up only being genuinely accessible for those who are skilled in translation.

A close reading of these communications illustrates how the accompanying translation processes can translate an argument, or a number, into an uncontested fact. Yet, these translation processes are not neutral, but instead assume a decisive role in creating narratives about contested situations while simultaneously seeking to legitimise these narratives.Footnote ⁹⁰ Strikingly, the communications contain information that is presented as uncontested fact but without substantiating the information in any way, such as offering a source to assess its veracity. A perfect illustration of this is the repeated mention of 512,000 new voters which the SAC rulings could have possibly made a reality.

The consequences of the HRC’s views regarding these two cases were devastating for the ninety-three persons, their children and future generations. This is illustrated by the aftermath of the communications: following the HRC’s views, the Sámi Parliament in the elections of 2023 unilaterally decided to exclude these people from the electoral register. The Finnish SAC had to once again decide on complaints by these persons. Accordingly, the timetable became too tight for these persons, including the top candidate of the two last elections, to run for election.Footnote ⁹¹

These events reveal how assessments of what constitutes a fact acquire important consequences in real life, even if the Committee’s views are not legally binding. This is communicated by a letter dated 21 February 2023 that the Sámi Parliament sent to all those persons who had been added to the electoral roll by the SAC: ‘In the view of the decisions and views by the UN committees on Human Rights and CERD, the electoral body of the parliament cannot consider that the decisions by the Finnish SAC are still valid for the elections 2023. The persons listed in the annex (not public) can, in case they wish, appeal this decision to the Sámi Parliament. The electoral committee of the Sámi Parliament promises to review the appeals objectively and lawfully.’Footnote ⁹²

10.7 Conclusion

In this chapter, we have combined two different kinds of ethnographic research – research on the HRC and research on Sámi rights struggles – with the aim of explaining what kind of information may be considered as fact in the HRC’s individual communications procedure. Both Näkkäläjärvi et al. and Sanila-Aikio deal with the same issue – namely the self-determination of the Finnish Sámi to decide upon their membership through the involvement of an appeals court, the SAC. After struggling with the issue of admissibility, the HRC still found the existence of a Covenant violation. In doing so, the Committee relied on evidence that our analysis shows mischaracterised the actions of SAC. The Committee further went on to cite the dubious figure of 512,000 possible new voters as substantiation for individual violations, even though this figure has no concrete basis in reality.

Together, our case studies raise numerous compelling questions that call for further inquiry. What happened behind the scenes in these communications, which resulted in these outcomes? What roles were played by the authors’ representatives, one of whom was a former Committee member and thus an insider to the Committee’s operations? On the basis of these two case studies, what kind of broader conclusions can be drawn regarding the Committee’s evidentiary regime?

It should also be noted that conducting rigorous analysis on such complex communications requires vast and specific expertise. In the present case, this has not only included ethnographic knowledge of the Committee’s operations and Sámi rights struggles, but also the competence that we – this chapter’s authors – have in the Finnish language. Only this combination of expertise has enabled us to look behind the written materials of these two communications, going all the way back to the original ninety-three court cases, which were distanced from the Committee members in the cases’ written dossiers. Individual members of the HRC, primarily being experts in international human rights law in general and the ICCPR more specifically, understandably cannot have similar expertise for every communication that they process. Also, realistically, both Committee members and UN secretariat staff work under severe time constraints. This is an additional reason why data, such as ninety-three court cases, can become distanced; there is simply not enough time to read vast amounts of data, even if the individuals possessed the needed linguistic skills to do so.

Of necessity, Committee members have to rely on distinct techniques for assessing the veracity of data and arriving at their final conclusions. In doing so, they need to assess the reliability of the authors, as well as the comprehensiveness with which the UN secretariat has prepared the background dossiers. As these case studies illustrate, this approach may lead to outcomes that erase internal tensions from view. The same applies to such marginalised subjectivities as non-registered Sámi, as seen in our case studies. These outcomes may result in different kinds of human rights violations that the current monitoring framework focusing only on the relationship of states and communication authors – in this case, registered members of the Sámi people – is ill-equipped to address. We hope that our case studies and analysis may contribute to a nuanced debate on the evidentiary regimes of the HRC, as well as other international monitoring mechanisms, by generating new kinds of insights concerning their blind spots and unexpected consequences.