Right to truth

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Women of the Association of Families of the Detained-Disappeared demonstrate in front of La Moneda Palace during the Pinochet military regime, demanding information on loved ones subjected to forced disappearance. Agrupacion de Familiares de Detenidos Desaparecidos de Chile (de Kena Lorenzini).jpg
Women of the Association of Families of the Detained-Disappeared demonstrate in front of La Moneda Palace during the Pinochet military regime, demanding information on loved ones subjected to forced disappearance.

Right to truth is the right, in the case of grave violations of human rights, for the victims and their families or societies to have access to the truth of what happened. [1] [2] The right to truth is closely related to, but distinct from, the state obligation to investigate and prosecute serious state violations of human rights. [3] [4] Right to truth is a form of victims' rights; [5] it is especially relevant to transitional justice in dealing with past abuses of human rights. [6] In 2006, Yasmin Naqvi concluded that the right to truth "stands somewhere on the threshold of a legal norm and a narrative device ... somewhere above a good argument and somewhere below a clear legal rule". [7] [8]

Contents

Origins

The idea of a legal right to truth is distinct from the pre-existing understanding of the importance of establishing the truth about what happened in a case of human rights violation. [3] In 1977, Protocol I to the Geneva Conventions enshrined a right for families of people killed in armed conflicts to find out what happened to their relatives. [9] A 1993 conference at the Catholic Institute for International Relations addressed the right to truth. [10] The right to truth has been recognized in international soft law instruments such as the United Nations Principles to Combat Impunity (2005) [11] [12] and UN General Assembly Resolution 60/147, as well as by the 2011 appointment of a United Nations Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of non-Recurrence. [11] In 2006, the United Nations Human Rights Commission determined that there was an "inalienable and autonomous right" to truth. The International Convention for the Protection of All Persons from Enforced Disappearance also guarantees victims of forced disappearance a right to know the circumstances of the disappearance, but it is not universally ratified. [13]

According to Patricia Naftali, the right to truth remains elusive because it is a concept with different definitions (sometimes contradictory), which is deployed in support of a variety of human rights claims. [14] [15]

Cases

Memorial at Villa Grimaldi with the names of hundreds of people either missing from or killed there by Chilean secret police under the Pinochet dictatorship Villa Grimaldi 3.jpg
Memorial at Villa Grimaldi with the names of hundreds of people either missing from or killed there by Chilean secret police under the Pinochet dictatorship

As a result of cases before international courts that find states in breach of human rights, states have been required to: [16]

  1. Conduct effective investigations and prosecute the responsible individuals
  2. Reveal information regarding missing persons
  3. Publicly apologize and acknowledge the violation of human rights
  4. Publish the court judgement
  5. Compensate victims
  6. Reimburse court costs of claimants
  7. Improve security to allow the return of displaced persons
  8. Take steps to avert re-occurrence of the violation
  9. Change national laws
  10. Institute measures to improve compliance with international human rights instruments
  11. Construct memorials to commemorate the human rights violation

United Nations Human Rights Committee

The first case that articulated a right to truth in international human rights jurisprudence was a forced disappearance case, Quinteros v. Uruguay (1983); the UN Human Rights Committee determined that, according to the International Covenant on Civil and Political Rights, the mother of the victim had "the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular, of article 7 [ICCPR]". [17] In Saadoun v. Algeria (2003), regarding a man who was forcibly disappeared during the Algerian Civil War, the Committee determined that failure to investigate gave rise to a new violation of the ICCPR. In this case, Algeria had proclaimed an amnesty for crimes committed during the "national tragedy". [18]

Inter-American Court of Human Rights

Case law of the Inter-American Court of Human Rights has tended towards an autonomous right to truth. [19] Because of right to truth, the IACHR has invalidated agreements that grant amnesty to human rights violators, as in Barrios Altos v. Perú  [ es ] (2001). [20] In 1985, six years before Guatemala accepted the jurisdiction of the IACHR, American journalist Nicholas Blake disappeared. In Blake v. Guatemala (1998), the IACHR determined that Guatemalan efforts to obstruct his family's search for the truth constituted inhuman treatment contrary to the American Convention on Human Rights. [21]

The IACHR has often repeated its opinion:

the right to the truth is subsumed in the right of the victim or his next of kin to obtain clarification of the facts relating to the violations and the corresponding responsibilities from the competent State organs, through the investigation and prosecution established in Articles 8 and 25 of the Convention. [22]

European Court of Human Rights

There is also case law of the European Court of Human Rights relevant to right to truth. [4] In Cyprus v. Turkey (2001), the ECtHR ruled against Turkey in the case of Greek Cypriots who had been last seen in the custody of Turkish troops. The anguish of surviving relatives constituted a "continuing violation of Article 3 of the European Convention on Human Rights (ECHR) with respect to the relatives of the Greek-Cypriot missing persons." [23] In El-Masri v. Macedonia (2012), the ECtHR established that North Macedonia had violated the Convention in allowing El-Masri to be taken into US custody during extraordinary rendition. The court noted that Macedonian authorities had "deprived the applicant of being informed of what had happened, including of getting an accurate account of the suffering he had allegedly endured and the role of those responsible for his alleged ordeal" as well as hidden this information from the public at large. According to law professor Arianna Vedaschi, "the decision given in El-Masri showed innovative legal reasoning and a wholly innovative attitude of the judges towards the far-reaching enforcement of the right to the truth". [1] [24] In Janowiec and Others v. Russia (2013), the court found no violation of the convention regarding Russian investigations into the 1940 Katyn massacre, but this ruling was on the principle of non-retroactivity because the massacre happened before the ECHR was drafted. [25] [26]

Legal scholar James A. Sweeney criticized the ECtHR's approach to right-to-truth cases:

the ECtHR’s 'underlying values' test could have led the way in promoting internationally the notion that present-day denial or obstruction of the quest for truth about the gravest pre-ratification human rights abuses may amount, in itself, to a contemporary human rights violation. Such an approach does not apply each human rights treaty retroactively, nor does it convert every historical human rights abuse into a 'continuing violation', but it establishes exceptional circumstances in which denying the right to truth about historical human rights abuses is constitutive of a fresh violation within the temporal jurisdiction of the relevant enforcement body. [27]

National law

Argentine law recognizes the right to truth, with a sui generis legal proceeding called juicio por la verdad (trial for the truth) developed in the aftermath of the National Reorganization Process. [28]

Potential forums

It has been suggested that victims might rely on Article 5 of the African Charter on Human and Peoples' Rights in right-to-truth cases before the African Court on Human and Peoples' Rights. [29] The International Criminal Court's victim-centered approach may prove conducive to a right to truth. [30]

Other examples

Talaat Pasha, the architect of the Armenian Genocide, was buried in 1943 at the Monument of Liberty, Istanbul as a national hero. Talaat Pasha grave.jpg
Talaat Pasha, the architect of the Armenian Genocide, was buried in 1943 at the Monument of Liberty, Istanbul as a national hero.

According to legal scholar Agostina Latino, the right to truth related to the Armenian genocide extends beyond Armenian genocide survivors to their descendants as well as Armenians at large. Latino states that, as the successor to the Ottoman government that committed the genocide, the Turkish government's ongoing Armenian genocide denial violates their right to truth. For example, there are monuments and streets named after the perpetrators, but not the victims. [32] [33]

The Inter-American Court and some theorists have suggested that truth-telling may be a form of partial reparations to victims of human rights abuses. [34] [35] [36] Right to truth is related to the fight against impunity as establishing the truth about a past event is the first step in holding perpetrators accountable. [37] [38] [39]

Right to Truth Day

Since 2010, the UN has commemorated International Day for the Right to the Truth Concerning Gross Human Rights Violations and for the Dignity of Victims, or Right to Truth Day, on 24 March, the anniversary of the murder of El Salvador archbishop Óscar Arnulfo Romero. [40] [41]

See also

Related Research Articles

<span class="mw-page-title-main">European Court of Human Rights</span> Supranational court established by the Council of Europe

The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. The court is based in Strasbourg, France.

International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments, while not legally binding, contribute to the implementation, understanding and development of international human rights law and have been recognized as a source of political obligation.

The Inter-American Commission on Human Rights is an autonomous organ of the Organization of American States (OAS).

The Gacaca courts were a system of transitional justice in Rwanda following the 1994 genocide. The term 'gacaca' can be translated as 'short grass' referring to the public space where neighborhood male elders (abagabo) used to meet to solve local problems. The name of this system was then adopted in 2001 as the title of the state's new criminal justice system "Gacaca Courts" to try those deemed responsible for the 1994 Rwandan genocide where over an estimated 500,000 people were killed, tortured and raped. In 1994, the United Nations Security Council created the International Criminal Tribunal for Rwanda to try high-ranking government and army officials accused of genocide, war crimes, and crimes against humanity. The Gacaca Courts were established in law in 2001, began to operate on a trial basis in 2002 and eventually came to operate as trials throughout the country by early 2007. The Gacaca courts were presented as a method of transitional justice, claimed by the Rwandan government to promote communal healing and rebuilding in the wake of the Rwandan Genocide. Rwanda has especially focused on community rebuilding placing justice in the hands of trusted citizens.

National Commission on the Disappearance of Persons was an Argentine organization created by President Raúl Alfonsín on 15 December 1983, shortly after his inauguration, to investigate the fate of the desaparecidos and other human rights violations performed during the military dictatorship known as the National Reorganization Process between 1976 and 1983.

<span class="mw-page-title-main">Truth commission</span> Commission tasked with discovering and revealing past wrongdoing

A truth commission, also known as a truth and reconciliation commission or truth and justice commission, is an official body tasked with discovering and revealing past wrongdoing by a government, in the hope of resolving conflict left over from the past. Truth commissions are, under various names, occasionally set up by states emerging from periods of internal unrest, civil war, or dictatorship marked by human rights abuses. In both their truth-seeking and reconciling functions, truth commissions have political implications: they "constantly make choices when they define such basic objectives as truth, reconciliation, justice, memory, reparation, and recognition, and decide how these objectives should be met and whose needs should be served".

Transitional justice is a process which responds to human rights violations through judicial redress, political reforms and cultural healing efforts in a region or country, and other measures in order to prevent the recurrence of human rights abuse. Transitional justice consists of judicial and non-judicial measures implemented in order to redress legacies of human rights abuses. Such mechanisms "include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms" as well as memorials, apologies, and various art forms. Transitional justice is instituted at a point of political transition classically from war to positive peace, or more broadly from violence and repression to societal stability and it is informed by a society's desire to rebuild social trust, reestablish what is right from what is wrong, repair a fractured justice system, and build a democratic system of governance. Given different contexts and implementation the ability to achieve these outcomes varies. The core value of transitional justice is the very notion of justice—which does not necessarily mean criminal justice. This notion and the political transformation, such as regime change or transition from conflict are thus linked to a more peaceful, certain, and democratic future.

Impunity is the ability to act with exemption from punishments, losses, or other negative consequences. In the international law of human rights, impunity is failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress. Impunity is especially common in countries which lack the tradition of rule of law, or suffer from pervasive corruption, or contain entrenched systems of patronage, or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities. Impunity is sometimes considered a form of denialism of historical crimes.

Truth-seeking processes allow societies to examine and come to grips with past crimes and atrocities and prevent their future repetition. Truth-seeking often occurs in societies emerging from a period of prolonged conflict or authoritarian rule. The most famous example to date is the South African Truth and Reconciliation Commission, although many other examples also exist. Most commonly these are carried out by official truth and reconciliation commissions as a form of restorative justice, but there are other mechanisms as well.

Reparations are broadly understood as compensation given for an abuse or injury. The colloquial meaning of reparations has changed substantively over the last century. In the early 1900s, reparations were interstate exchanges that were punitive mechanisms determined by treaty and paid by the surrendering side of a conflict, such as the World War I reparations paid by Germany and its allies. Reparations are now understood as not only war damages but also compensation and other measures provided to victims of severe human rights violations by the parties responsible. The right of the victim of an injury to receive reparations and the duty of the part responsible to provide them has been secured by the United Nations.

<span class="mw-page-title-main">National Truth Commission</span>

In Brazil, the National Truth Commission investigated human rights violations of the period of 1946–1988 - in particular by the authoritarian military dictatorship that ruled Brazil from April 1, 1964 to March 15, 1985.

The Spanish 1977 Amnesty Law is a law passed by the Parliament of Spain and given royal assent on October 15, 1977, two years after Francisco Franco's death. The Law freed political prisoners and permitted those exiled to return to Spain, but also guaranteed impunity for those who participated in crimes, during the Civil War, and in Francoist Spain. The law is still in force, and has been used as a reason for not investigating and prosecuting Francoist human rights violations.

The Republic of Uruguay is located in South America, between Argentina, Brazil and the South Atlantic Ocean, with a population of 3,332,972. Uruguay gained independence and sovereignty from Spain in 1828 and has full control over its internal and external affairs. From 1973 to 1985 Uruguay was governed by a civil-military dictatorship which committed numerous human rights abuses.

Perinçek v. Switzerland is a 2013 judgment of the European Court of Human Rights concerning public statements by Doğu Perinçek, a Turkish nationalist political activist and member of the Talat Pasha Committee, who was convicted by a Swiss court for publicly denying the Armenian genocide. He was sentenced to 90 days in prison and fined 3000 Swiss francs.

The Mothers of Srebrenica, also known as the Mothers of the Enclaves of Srebrenica and Žepa, is an activist and lobbying group based in the Netherlands that represents 6,000 survivors of the siege of Srebrenica during the Yugoslav Wars of the 1990s. The organization is best known for bringing a civil action against the United Nations for a breach of duty of care for the failure to prevent the genocide at Srebrenica.

The Commission of Inquiry to Locate the Persons Disappeared during the Panchayat Period (1990–1991) is a truth commission established in Nepal in 1990 after the end of the autocratic Panchayat Regime by the first post-Panchayat Prime Minister Krishna Prasad Bhattharai. The commission was set up to examine allegations of human rights violations and inquire about enforced disappearances during the Panchayat system from 1961 to 1990. A report was officially submitted to the government in 1991, but it was made public only in 1994. The commission identified 35 persons disappeared on about one hundred studied cases. However, no alleged perpetrators were judged.

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The right to an effective remedy is the right of a person whose human rights have been violated to legal remedy. Such a remedy must be accessible, binding, capable of bringing perpetrators to justice, provide appropriate reparations, and prevent further violations of the person's rights. The right to an effective remedy guarantees the individual the ability to seek remedy from the state directly rather than through an international process. It is a practical means of protecting human rights on the state level and requires the state to not just only protect human rights de jure but also in practice for individual cases. The right to an effective remedy is commonly recognized as a human right in international human rights instruments.

Janowiec and Others v. Russia was a case brought before the European Court of Human Rights in 2007 and concluded in 2013 concerning the issue of human right violations in the context of the Katyn massacre.

Azerbaijan has been a member of the Council of Europe, an international organization that focuses on strengthening democracy and human rights, since 2001. As a member, it has attracted attention for holding political prisoners, low implementation of verdicts of the European Court of Human Rights (ECtHR), and bribing Council of Europe parliamentarians to suppress negative information about its human rights record. In 2017, the Committee of Ministers launched the first ever infringement proceeding against Azerbaijan after it refused to release opposition politician Ilgar Mammadov after a 2014 ECtHR verdict that his imprisonment was unlawful. There has also been criticism of Azerbaijan's continued membership by those who believe its lack of human rights protection undermines the credibility of the Council of Europe.

References

  1. 1 2 Vedaschi, Arianna (2014). "Globalization of Human Rights and Mutual Influence between Courts: The Innovative Reverse Path of the Right to the Truth". In Shetreet, Shimon (ed.). The Culture of Judicial Independence: Rule of Law and World Peace. Martinus Nijhoff Publishers. pp. 107–133. ISBN   978-90-04-25781-8.
  2. ↑ Park, Y. Gloria (2010). "Truth as Justice: Legal and Extralegal Development of the Right to Truth". Harvard International Review . 31 (4): 24–27. ISSN   0739-1854. JSTOR   42763345.
  3. 1 2 Sweeney, James A (2018). "The Elusive Right to Truth in Transitional Human Rights Jurisprudence". International and Comparative Law Quarterly. 67 (2): 353–387. doi: 10.1017/S0020589317000586 .
  4. 1 2 Panepinto, Alice M. (2017). "The right to the truth in international law: The significance of Strasbourg's contributions". Legal Studies. 37 (4): 739–764. doi:10.1111/lest.12172. S2CID   149087878.
  5. ↑ Klinkner, Melanie; Davis, Howard (2019). The Right to The Truth in International Law: Victims' Rights in Human Rights and International Criminal Law. Routledge. ISBN   978-1-317-33508-5.
  6. ↑ Szoke-Burke, Sam (2015). "Searching for the Right to Truth: The Impact of International Human Rights Law on National Transitional Justice Policies". Berkeley Journal of International Law. 33: 526.
  7. ↑ Sweeney 2018, p. 359.
  8. ↑ Naqvi, Yasmin (2006). "The right to the truth in international law: fact or fiction?". International Review of the Red Cross. 88 (862): 245–273. doi:10.1017/S1816383106000518. S2CID   144817072.
  9. ↑ Groome 2011, p. 176.
  10. ↑ Linden, Ian (1994). "'The right to truth: Amnesty, amnesia, and secrecy˚s". Development in Practice. 4 (2): 141–143. doi:10.1080/096145249100077701.
  11. 1 2 Sweeney 2018, pp. 356–357.
  12. ↑ Groome, Dermot (2018). "Principle 2: The inalienable right to the truth". In Haldemann, Frank; Unger, Thomas (eds.). The United Nations Principles to Combat Impunity: A Commentary. Oxford University Press. ISBN   978-0-19-106128-8.
  13. ↑ Sweeney 2018, p. 358.
  14. ↑ Naftali, Patricia (2016). "Crafting a "Right to Truth" in International Law: Converging Mobilizations, Diverging Agendas?". Champ pénal/Penal field (in French). XIII. doi:10.4000/champpenal.9245. ISSN   1777-5272.
  15. ↑ Rowen, Jamie (2019). "Patricia Naftali, La construction du 'droit à la vérité' en droit international". Journal of International Criminal Justice. 17 (1): 202–204. doi:10.1093/jicj/mqz005.
  16. ↑ Groome 2011, pp. 193–195.
  17. ↑ Sweeney 2018, pp. 360–361.
  18. ↑ Sweeney 2018, pp. 361–362.
  19. ↑ Ferrer Mac-Gregor, Eduardo (2016). "The Right to the Truth as an Autonomous Right Under the Inter-American Human Rights System". Mexican Law Review. 9 (1): 121–139. doi: 10.1016/j.mexlaw.2016.09.007 .
  20. ↑ Latino 2018, p. 202.
  21. ↑ Groome 2011, pp. 177–178.
  22. ↑ Sweeney 2018, p. 369.
  23. ↑ Groome 2011, p. 179.
  24. ↑ Fabbrini, F. (2014). "The European Court of Human Rights, Extraordinary Renditions and the Right to the Truth: Ensuring Accountability for Gross Human Rights Violations Committed in the Fight Against Terrorism". Human Rights Law Review. 14 (1): 85–106. doi:10.1093/hrlr/ngt017.
  25. ↑ "Poland disappointed with European ruling over the 1940 Katyn massacre". Reuters. 21 October 2013. Retrieved 6 December 2020.
  26. ↑ Schabas, William A. (2018). "2. Time, Justice, and Human Rights: Statutory Limitation on the Right to Truth?". In Adler, Nanci (ed.). Understanding the Age of Transitional Justice: Crimes, Courts, Commissions, and Chronicling. Rutgers University Press. ISBN   978-0-8135-9776-8.
  27. ↑ Sweeney 2018, p. 386.
  28. ↑ Garibian, S. (2014). "Ghosts Also Die: Resisting Disappearance through the 'Right to the Truth' and the Juicios por la Verdad in Argentina". Journal of International Criminal Justice. 12 (3): 515–538. doi:10.1093/jicj/mqu030.
  29. ↑ Groome 2011, p. 180.
  30. ↑ Klinkner, Melanie; Smith, Ellie (2014). "The Right to Truth, Appropriate Forum and the International Criminal Court". Current Issues in Transitional Justice: Towards a More Holistic Approach. Springer International Publishing. pp. 3–29. ISBN   978-3-319-09390-1.
  31. ↑ Kieser, Hans-Lukas (2018). Talaat Pasha: Father of Modern Turkey, Architect of Genocide . Princeton University Press. p. 419. ISBN   978-1-4008-8963-1.
  32. ↑ Latino, Agostina (2018). "The Armenian Massacres and the Price of Memory: Impossible to Forget, Forbidden to Remember". The Armenian Massacres of 1915–1916 a Hundred Years Later: Open Questions and Tentative Answers in International Law. Springer International Publishing. pp. 195–236. ISBN   978-3-319-78169-3.
  33. ↑ Altanian, Melanie (2020). "Genocide Denial as Testimonial Oppression". Social Epistemology. 35 (2): 133–146. doi:10.1080/02691728.2020.1839810. S2CID   229073471.
  34. ↑ Sweeney 2018, p. 367.
  35. ↑ Walker, Margaret Urban (2010). "Truth Telling as Reparations". Metaphilosophy. 41 (4): 525–545. doi:10.1111/j.1467-9973.2010.01650.x.
  36. ↑ Antkowiak, Thomas M. (2001–2002). "Truth as Right and Remedy in International Human Rights Experience". Michigan Journal of International Law. 23: 977.
  37. ↑ Yusuf, H. O. (2007). "Travails of Truth: Achieving Justice for Victims of Impunity in Nigeria". International Journal of Transitional Justice. 1 (2): 268–286. doi:10.1093/ijtj/ijm023.
  38. ↑ Groome, Dermot (2011). "The Right to Truth in the Fight against Impunity". Berkeley Journal of International Law. 29: 175.
  39. ↑ Dykmann, Klaas (2007). "Impunity and the Right to Truth in the Inter-American System of Human Rights". Iberoamericana (2001-). 7 (26): 45–66. ISSN   1577-3388. JSTOR   41676303.
  40. ↑ "Right to Truth Day". United Nations. Retrieved 28 November 2020.
  41. ↑ "Right to the Truth". International Center for Transitional Justice. 14 March 2012. Retrieved 28 November 2020.

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