Turning the gákti Around Again
“Law, truth, justice”: these important words are carved in the stone wall above the entrance of courtroom 2 of the Supreme Court of Norway. They remind us of the importance of the rule of law as a fundamental pillar of a well-functioning democracy. Yesterday, the room was stage for the third, and so far last, round in the criminal case against thirteen young Indigenous Sámi and environmental activists. The Sámi defendants, who were acquitted by the District Court of Oslo and the Borgarting Court of Appeals, arrived at the court wearing their gákti inside out. Showing the ugly side of their traditional clothing is a symbol of protest and opposition.
The Backdrop: The Fosen Case
The Supreme Court is the same court that, nearly four years ago, sitting in Grand Chamber rendered the unanimous Fosen judgment. For the first time, the Supreme Court found that an intervention into traditional Sámi land violated Indigenous rights protected under an international human rights treaty, namely Art. 27 ICCPR. The judgment was widely considered a victory for Sámi rights.
The Fosen case forms the backdrop of the protest actions that started in February 2023, when 500 days since the judgment had passed. As I have discussed elsewhere, the demonstrations were a reaction to the government’s inaction to implement the Fosen judgment. The protests were considered the largest Sámi mobilisation since the famous Alta actions, which led to substantial social and legal changes in Norway, including the creation of the Sámi Parliament and the Sámi Act. The Fosen protests continued until mid-October 2023 and were terminated once the Prime Minister Jonas Gahr Støre apologised for the ongoing human rights violations against the Fosen reindeer herders.
This post does not further delve on the Fosen case or the factual or legal background of the activists’ punishment for disobeying police orders, which have been discussed here, here, and here. It suffices to note that they were acquitted by the District Court of Oslo and the Borgarting Court of Appeal.
Legal Strategies at Trial
The criminal case against the young Sámi activists raises questions regarding the state’s prosecutorial priorities and allocation of resources. Unlike the famous Alta case, where the activists mobilised against a Supreme Court judgment – and thus stood in direct opposition to the justice system – the Fosen activists mobilised in support of a Supreme Court judgment. Their (consistently non-violent and respectful) protests could thus be understood as the defence of the rule of law and the bottom-up support of the judicial pillar.
The prosecutor’s choice to appeal this case is difficult to grasp. The prosecution seemingly takes a purely legalistic perspective on the case and justifies the appeal in order to get an answer to the main legal question regarding the police’s authority to stop demonstrations and civil disobedience. On behalf of the state, he challenges the understanding that “the defendants cannot (…) be punished because the fines (…) constitute a disproportionate interference with their right to participate in peaceful assemblies and demonstrations and are thus not ‘necessary in a democratic society’”. I shall return to the necessity requirement below.
While it is laudable to develop and clarify the legal contours of the right to freedom of assembly and civil disobedience, this is arguably the wrong case to test the law. The prosecution’s focus is solely on law, while overarching considerations of justice are subordinate. As the inscriptions on the wall of courtroom 2 remind us, law is only one of three fundamental principles that guide the court. Let’s not forget about the importance of truth and justice. This aspect is especially prominent for Norway and its relationship to its Indigenous population. The Norwegian Truth and Reconciliation Commission’s report painstakingly demonstrated the many injustices that the state inflicted against the Sámi. It equally identified the need to achieve justice to achieve true reconciliation. A purely legalistic take on situations of injustice will arguably not promote reconciliation.
The defence, on the other hand, repeatedly pointed to the context, in which the case occurred, foremost civil disobedience in defence of a judgment. She also reminded of the case’s implications, which go far beyond the ordinary need to punish individuals for disobeying police orders. She highlighted the special protection that the state must guarantee to minorities and Indigenous peoples. The defence hoped that the Supreme Court would not disregard perspectives of history or the growing crisis of trust between the Sámi and the Norwegian State. She drew historical lines to the assimilation policies and the loss of Indigenous rights at the hand of the state.
Connecting the Dots
The assimilation policy, which lasted from approximately 1850 for about a century, had devastating effects on the Sámi Indigenous population and the Kven and Forest Finn national minorities. Enforced by schools, churches, and courts, the policy entailed cultural losses, stigmatisation, and discrimination, which continue until today. The judiciary played a crucial role in limiting Sámi rights. The fact that the activists in 2023 protested in favour of a court judgment could indicate renewed trust in and defence of the judiciary. However, the lack of implementation of the Fosen judgment for more than two years and three rounds of criminal trials against the young activists have shattered this trust. One of the defendants asked yesterday at court: “Are the Sámi in practice void of rights?” She continued: “Human rights are a kind of minimum guarantee, but now the state has cast doubt on whether we ever had them”. She maintained that the civil resistance was a cry for help to maintain their legal safety and the rule of law. The fight for Sámi land, which is at the heart of the Fosen case, was for all the defendants (who are not directly involved in that case and come from different areas of Sápmi) “deeply personal” and an existential matter.
Going Beyond the Law
The stakes of the current case are high. Given its symbolic and legal importance, the pressure on the Supreme Court is not insignificant. While the Court is bound and judges by the law — and the ruling is binding only for the parties — the consequences will go far beyond the individual case. The upcoming judgment will, without a doubt, have a strong signalling effect: it could hamper the ongoing reconciliation process, the relationship between the state and its Indigenous population, and the trust in the rule of law.
Aili Keskitalo, the former President of the Sámi Parliament and now political advisor at Amnesty International Norway, confirmed that this was not just a regular trial about the legal framework for demonstrations and civil disobedience. Rather, it was about the Norwegian society’s principles about the rule of law and democracy, and how the state relates to Indigenous people who stand up for their rights. The Sámi activists affirmed this: since they mobilised and demonstrated in support of a Supreme Court judgment, which found a human rights violation of the Indigenous population, they experienced their criminal prosecution as a shock and disappointment, which entailed the loss in trust in the state.
Fundamental Rights in a Democracy?
So, what then is ‘necessary in a democratic society’? By removing the activists and taking them into police custody, the police intervened into the activists’ freedom of assembly. According to the prosecution, this infringement was necessary because it helped restore public order and safety. Leaving aside the contentiousness of that claim and without going into the technicalities of human rights law, the right to peaceful freedom of assembly under Art. 11 of the European Convention of Human Rights (ECHR) is “a fundamental right in a democratic society” and lex specialis to the closely related freedom of expression in Art. 10 ECHR. Not only is the right to freedom of assembly a fundamental right in any democracy, but also interventions into it are only permissible if they are necessary in a democratic society. In other words: human rights law is intrinsically tied to democracy.
This brings me to the core values of functioning democracies: respect for human rights and fundamental freedoms, especially for minorities, the rule of law, and the trust in the state. Norway is proud of its reputation as defender of human rights and democracy, especially in its foreign policy. This entails not only the separation of powers but also the enforcement of judicial decisions by the state’s executive branch. The governmental failures in handling the Fosen case seriously jeopardised the separation of powers and the rule of law. Lack of respect for the rule of law and human rights, will inevitably weaken the democracy. It is now up to the judiciary, as one of the three pillars of the Norwegian state, to not only uphold human rights, the rule of law, but also democracy.
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