16/1/24: Wine and Discussion (Lezing)

The Politics of Legal facts: The Erasure of Pushback Evidence from the European Court of Human Rights’.

This article analyses the evidentiary regime at the European Court of Human Rights (ECtHR) for pushback incidents where states violently force migrants and asylum-seekers away from borders. An examination of how victims' experiences get translated (or not) into judgments contributes to theoretical discussions about political factors that shape the construction of legal facts. The article asks why so little of what researchers, journalists, civil society actors and international organizations have documented about European border violence is visible in the Court’s judgments. Based on a mix of legal and anthropological research methods and data, the article traces how states and the Convention system operate a series of legal moves at borders and during litigation that together erase pushback evidence from the historical record of its judgments. The article conceptualizes human rights adjudication as a set of culturally productive processes that render ‘facts’ presented by states more visible than those presented by individual applicants. We argue that boundary making between judicial truth and states’ truth claims is important for international human rights adjudication. The presumption of the states’ good faith should no longer apply when there is evidence, including in case law, of misrecordings and false statements about facts by respondent states.