Paper short abstract:

The matter I propose to address concerns the relationship between basic research in anthropology and legal practice, with a particular focus on the situation in contemporary continental Europe, and in particular on issues of coexistence between legal cultures. I advocate an intensified collaboration between basic research in anthropology and legal practice, but not without some conditions attached.

Paper long abstract:

Increasingly, in recent years in continental Europe, there is an expanding array of roles for ethnographic data to play in policy and in legal decisions dealing with issues raised by increasing cultural diversity. This tendency opens up prospects for reflection on the way in which anthropological insights may be incorporated into the judicial process and legal practice more generally.

The English-speaking world (Common law countries) has had a head start in experimenting with the application of ethnographic research in the form of recommendations to judicial and political decision-makers. Continental Europe lags behind in this realm. The object of our paper is threefold: (1) what lessons can Europe learn from the experience of the English-speaking world, given the differences in legal cultures and traditions? (2) Are there precedents that might enable us to see the added value of ethnographic expertise for the elaboration of legal solutions? (3) What are the conditions that would ensure that expert opinions are not instrumentalised for purposes other than the search for justice?

From the available English-language literature, we know the ethical, professional, methodological and epistemological problems raised by consultancy work. These problems are liable to arise ever more frequently as well in continental Europe, thus obliging consultants (anthropologists) to face questions that have been - proportionally speaking - rarely addressed in the literature outside the US, Canada and the UK. The paper will be based on experiences both of consultants and legal practitioners. We will analyse the testimonies collected in the light of the three questions mentioned above.

Paper short abstract:

What has been the role played by forensic anthropologists in the evolution and development of international criminal justice? This paper will examine the nexus of anthropology and international law as witnessed by international criminal tribunals and the work of forensic anthropologists.

Paper long abstract:

Criminal enquiries by international criminal tribunals into war crimes and genocide have increasingly come to be characterised by the application of forensic anthropological analysis to the investigative process. Material gathered through mass grave exhumation is translated into forensic evidence used to support a prosecutorial theory of guilt of the accused, or in the case of defence investigations, to debunk contentions of culpability. The rules underpinning the practice of anthropologists in such a context have, however, developed on an ad hoc basis and have frequently evolved in a reactive fashion, rather than on an anticipatory basis. This paper seeks to examine the experience to date of anthropologists working within an international criminal justice context, through the examination of the following themes:

1. The history of forensic expertise and international criminal trials.

2. (i) The regulations that guide the practice of anthropologists who work in an international criminal justice context and (ii) rules of procedure and evidence that have been developed by international criminal trials pertaining to expert witness evidence. Using examples drawn from the investigatory practice and the case law of the international criminal tribunals for the former Yugoslavia and Rwanda, the paper will highlight the tensions that can arise when prosecutorial objectives are at cross purposes with other competing needs of concern to the anthropologist, including humanitarian objectives such as human identification and the repatriation to surviving families of victim's remains.

Paper short abstract:

This paper deals with the production of “data” and “evidence” in the struggle against forced marriages in Switzerland. It discusses the challenges of producing anthropological and scientific knowledge in the context of conflicting institutional, legal and political agendas.

Paper long abstract:

Switzerland has recently known a succession of legislative changes, with the common aim of involving civil servants in the struggle against unwanted migration. In this context, narratives about a range of marriages seen as "untrue" have arisen. Among them, the issues about forced marriages have met a wide public, media and political audience as it links together popular topics such as human rights, gender equality, protection of "national values", migration and socio-cultural diversity. But, as noticed by various local authorities, such debates lack of "evidence" and "empirical data", which was considered as problematic for the implementation of efficient politics against forced marriages. As anthropologist working on marriage and institutions, I was given a research mandate to provide local anchored knowledge about the "reality" of forced marriages in the Canton de Vaud. During several meetings, the cantonal task group and I discussed the empirical data collected through in-deep, comprehensive interviews, how it "provides" (or not) evidence for forced marriages, and what forced marriages were. This paper discusses what was at stake in this particular production of "data", its analysis and the conflicting interests surrounding the writing of the final report. It highlights the challenges of producing anthropological and scientific knowledge in the context of institutional, legal and political agendas.

Paper short abstract:

This is a personal account of a recent criminal trial involving a young Zimbabwean woman who attacked her mother with a knife, when she was ‘possessed’ as the result of witchcraft. Utilising Harry West’s notion of ‘Ethnographic sorcery’, it discusses the consequences of how ‘courtroom sorcery’ can marginalise anthropological evidence, as it seeks to construct its own kind of certainty.

Paper long abstract:

This is a personal account of a recent criminal trial in the UK that the author was involved in as an anthropologist and expert witness, involving a young Zimbabwean woman who attacked her mother with a knife, when she (as she, her mother and relatives claimed) was 'possessed' by an evil spirit as the result of another family member's witchcraft. Evidence for her abnormal state of consciousness was corroborated by police evidence which described her as 'in a trance' on the night in question, and despite a wide range of medical and psychiatric assessments, no clear neurological, medical, psychiatric or sleep disorder causes for her 'possession' were ever established. The paper describes the difficulties involved in producing anthropological evidence for a criminal court, the limitations of conventional forms of 'cultural defence', and the difficulties encountered in trying to persuade the court to adopt the anthropological stance of 'suspending its disbelief' in order that it may recognise the limits of knowledge and the possibility of 'other possibilities'. Utilising Harry West's notion of 'Ethnographic sorcery', it discusses the consequences of how 'courtroom sorcery' can marginalise anthropological evidence, as it seeks to construct its own kind of certainty.

Paper short abstract:

This paper examines asylum cases in North America and explores the ways in which evidentiary concerns are being examined by courts as a way to clarify state responsibilities to protect asylum seekers in relation to understandings of cultural norms and potential threats to claimants in the countries of origin. The paper attempts to advocate a theory of anthropological knowledge brokering by examining new forms of anthropological engagement.

Paper long abstract:

The post-cold war reconfiguration of economies and national state alignments have found us in a period in which civil wars and revolutionary democratic demands have led to social upheavals and the movement of large populations. Among the forces of change have been growing asylum claims, especially from the global South, requiring the growth of a related industry of refugee lawyers, legal brokers, and expert witnesses—all involved in the play of claim making. In search of "facts" and in an effort to make sense of cultural "truths," the development of a "culture of experts" remains among the fastest growing domains of contemporary asylum cases today. This paper examines the exponential growth of a "culture of experts" through which to understand both the discursive and changing requirements of proof for North American asylum courts, as well as the reshaping of new anthropological publics through demands for ethnographic knowledge products - known as expert testimony. I examine asylum cases through which evidentiary concerns were examined as a way to clarify state responsibilities to protect asylum seekers in relation to understandings of cultural norms and potential threats to claimants in the countries of origin. The paper argues for a new conceptualization of anthropological knowledge packages that attends to the changing terms of evidentiary deliverance and argues for a reconceptualization of the work of anthropological expertise.

Paper long abstract:

This paper explores judicial decision-making with specific regard to the evidence submitted in asylum claims listed to provide 'Country Guidance' for immigration judges on the issue of nationality and statelessness in Ethiopia. The decisions in the cases appear to reflect very different approaches to expert and other evidence submitted to the court, however I will argue that contrary to Latour (2010: 216), that facts may exert 'a real hold on the case' depending upon the rules of law

Paper short abstract:

This paper explains the role of Country of Origin Information in refugee status decision-making by the UK Border Agency and British asylum courts. It then describes three fact-finding visits to Sri Lanka, and reflects on how such evidence from 'country experts' is evaluated by Immigration Judges.

Paper long abstract:

Country of Origin Information (COI) is crucial to most legal findings regarding the plausibility and credibility of asylum seekers' narratives of persecution. COI comes from various sources: Country Reports from governments, multinational agencies and NGOs; printed and electronic media; and evidence from 'country experts' such as anthropologists. This paper analyses the evolving role of COI in asylum decisions in British asylum courts. Drawing on interviews, observation, and the author's own role as a 'country expert', it describes how COI is produced by the Home Office's Country of Origin Information Service, and how it is used in the refugee status determination process by key actors such as UKBA case owners, asylum lawyers and Immigration Judges. The paper then describes three fact-finding visits to Sri Lanka, to gather up-to-date information on the human rights situation. It explains how these field visits helped shed light on important issues arising in Sri Lankan asylum claims, but also reflects on how such evidence is received and evaluated by judges. It also explains the problems posed for anthropological expert witnesses by recent judicial attempts, in the form of 'Country Guidance' cases, to adopt standardised views on such factual matters as the treatment of apostates in Iran, or the risk faced by LTTE suspects returned to Colombo.

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Paper short abstract:

This paper examines how British immigration judges assess evidence in order to try and predict the future occurrence of torture. The central argument of this paper is that through risk assessments, the absolute prohibition on torture is translated into the uncertainties of judicial attempts to predict the future.

Paper long abstract:

Human rights practices look to the future as much as the past. The principle of non-refoulement, of not returning people to places where they may face torture or other forms of ill-treatment, is but one example example. Yet, human rights projects are in a bind, as they are also part of a wider ''modernist project'' that eschews eschatology in favour of a sense of time without specific meaning, direction, or end point. In this process, the future seems dangerously opaque and inscrutable. The task of prediction is therefore inherently fallible. This paper examines how British immigration judges assess evidence presented in the course of claims made under Article 3 of the ECHR, in order to try and predict the future occurrence of torture. In particular, it examines how the category of risk is used to try to bring the future within view. The central argument of this paper is that through risk assessments, the absolute prohibition on torture is translated into the uncertainties of judicial attempts to predict the future. A right that supposedly has no exceptions or limitations becomes shot through with caveats and ambiguities once it is projected forward in time.