The Right to The Truth in International Law

Victims' Rights in Human Rights and International Criminal Law

Melanie Klinkner, Howard Davis

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317335085
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The United Nations has established a right to the truth to be enjoyed by victims of gross violations of human rights. The origins of the right stem from the need to provide victims and relatives of the missing with a right to know what happened. It encompasses the verification and full public disclosure of the facts associated with the crimes from which they or their relatives suffered. The importance of the right to the truth is based on the belief that, by disclosing the truth, the suffering of victims is alleviated.

This book analyses the emergence of this right, as a response to an understanding of the needs of victims, through to its development and application in two particular legal contexts: international human rights law and international criminal justice. The book examines in detail the application of the right through the case law and jurisprudence of international tribunals in the human rights and also the criminal justice context, as well as looking at its place in transitional justice. The theoretical foundations of the right to the truth are considered as well as the various objectives appropriate for different truth-seeking mechanisms. The book then goes on to discuss to what extent it can be understood, constructed and applied as a hard, legally enforceable right with correlating duties on various people and institutions including state agencies, prosecutors and judges.

1 The need for truth

Introduction

Human suffering provides the starting point for understanding, analytically and morally, the idea of a legal right to the truth in respect of atrocity. Human rights reflect those human interests which are sufficiently strong to compel the performance of duties in others. Ameliorating the suffering of relatives in not knowing the fate of loved ones or of living victims in not knowing the circumstances and explanation for why they were attacked, is a ground of such an interest. In the first part of this chapter the nature of suffering from not knowing is explored in various historical contexts and psychological forms. But the value of knowing the truth behind atrocities is not confined to victims and this chapter continues by identifying and discussing other contexts in which knowing the truth behind atrocity is vital. As we will examine, important questions can arise in relation to the way, extent and interpretation of the right and its corresponding duties, dependent on the stakeholders. The categories of abuses that are linked with the right to the truth are introduced to conduct a comprehensive needs analysis on behalf of individuals and society following such gross human rights abuses.

Victims’ need for truth

There are numerous powerful stories told, and many more untold, evidencing the need for survivors to know the truth following gross human rights violations. Whether the woman in Nepal who seeks to know the fate of her husband; the daughters of fathers who disappeared in the 1990 Yugoslav war; grieving mothers and grandmothers in Latin America; or Lebanese activists lobbying for families of the missing to know their fate, the desire to find out the truth is well documented.¹

1 E.g. International Centre for Transitional Justice, ‘Truth and Memory’ (2017) www.ictj.org/our-work/transitional-justice-issues/truth-and-memory accessed 14 February 2019. The Inter-American Court of Human Rights expressly acknowledges that children and siblings of disappeared persons who were not yet born when the actual disappearance occurred may still be considered victims of enforced disappearance (Gudiel Álvarez et al. (“Diario Militar”) v Guatemala (20 November 2012)).

The exact reasons as to why seeking the truth is so important may vary:

• The return of human remains is necessary to provide opportunities for commemoration practices, funerals and – it is hoped – some sense of healing or closure;
• A death certificate may be required for insurance purposes to safeguard the livelihood of the family;
• Information as to the events that led up to the disappearance may explain the absence of a father as well as restoring basic human dignity to the disappeared and the family that is left (though the truth may also have undesired effects in evidencing previously not known family ties, for example);
• Understanding and investigating the fate of lost children may work towards answers, accountability and criminal justice efforts; documenting the patterns of violence and disappearance not only serves as a record of the human rights abuse but may lead to finding forcibly disappeared people who may still be alive.

The key reason behind a “right to the truth” at an individual level is that it seeks to answer existential questions. Existential not in an intellectual, philosophical understanding of existentialism as such (though typical existentialist questions such as “who am I” may arise), but rather as necessary for the continued existence of the survivors. They have and continue to suffer as a consequence of the human rights abuses and a lack of understanding as to what happened to their loved ones. There is a reason why so many human rights activists, NGOs and civil society initiatives have dedicated their efforts to urging governments to investigate and provide the truth by recording the stories of past human rights abuses such as genocide, crimes against humanity and war crimes: “we want to tell this story for a reason: it matters”.² One way of insisting on the right to the truth is to demonstrate the need for truth by giving victims an opportunity to tell their story and document human rights abuses in that way. This form of activism can be seen as giving victims a role in lobbying for the right to the truth to be realised by the state. Having an opportunity to tell one’s story, as we will discuss in the following chapter, can form part of the right to the truth realisation itself.

2 Louis Bickford and Others, ‘Documenting Truth’ (International Centre for Transitional Justice Report 2009), 5 www.ictj.org/sites/default/files/ICTJ-DAG-Global-Documenting-Truth-2009-English.pdf accessed 14 February 2019.

Evidence from the field indicates that the need of families to know the truth is vital and sometimes has primacy over wanting justice; the desire for justice may be a secondary consequence of the primary desire to know the truth.³ In addition to knowing the truth, livelihood issues and ensuring economic security may be equally important and take precedence over seeking judicial processes.⁴ Therefore, where possible, survivors wish to receive their human remains as an absolute proof of death and to facilitate burial and commemoration rituals.

3 Simon Robins, ‘Towards Victim-Centred Transitional Justice: Understanding the Needs of Families of the Disappeared in Postconflict Nepal’ (2011), 5 International Journal of Transitional Justice 75. Truth is therefore of the utmost significance. In line with our separation argument, it facilitates important secondary consequences, including reparation and justice.

4 Simon Robins, Families of the Missing. A Test for Contemporary Approaches to Transitional Justice (Routledge 2013).

Years after the events, the children of the disappeared, who were infants at the time of the events, continue to be affected by what happened decades ago.⁵ Many of them go through life searching for answers about the circumstances of their parents’ disappearance. This points to the longevity and legacy of gross human rights abuses and the long-term effects truth-telling or shielding from the truth can have.

5 Azra Hodzic ‘Remember Me’ (2014 documentary), www.ictj.org/news/documentary-film-remember-me accessed 14 February 2019.

Futile searches and frustration with the official channels have also created networks and associations designed to search for the disappeared and to document and denounce those responsible for human rights abuses. Argentina’s Madres de Plaza de Mayo and the Abuelas de Plaza de Mayo (Mothers and Grandmothers of Buenos Aires’ main public square, the Plaza de Mayo) are perhaps the best known examples of such activism where, mainly housewives, searched for their husbands and children despite intimidations from the authorities.⁶ Searching, finding and documenting the truth can serve to gain a full and complete account of the repression mechanism and individuals involved. Such documentation efforts are not only vital elements of human rights advocacy but are also seen as precursors of transitional justice mechanisms.⁷

6 E.g. Jo Fisher, Mothers of the Disappeared (Zed Books 1989); Adam Rosenblatt, Digging for the Disappeared. Forensic Science After Atrocity (Stanford Studies in Human Rights, Stanford University Press 2015) at 88–89.

7 Bickford and others supra note 2 at 4.

As the right to the truth has evolved over the past decades, activists take recourse to it. Lebanese activists, for example, have expressed that they “will not give up this fight as long as we are armed with the right to truth and with our hope”.⁸ Many years after the civil war ended in 1990, there is still hope that some of those that disappeared may still be alive.⁹ For them, the right to the truth has developed from a need into a right that they are trying to invoke.

8 International Centre for Transitional Justice, ‘Armed With the Right to Truth, Families of the Missing Lobby to Learn Their Fate’ (Interview With Wadad Halwani and Ghazi Aad, 3 May 2012) www.ictj.org/news/armed-right-truth-families-missing-lobby-learn-their-fate accessed 14 February 2019.

9 Ibid.

From this level of need, a moral background right can be deduced to the effect that individual victims ought to be informed about the fate of their family members, pointing to the importance of an effective investigation of events and the communication of results. The political aim of such activists, not just in Lebanon but around the world, is to develop the moral right into an enforceable legal entitlement.

Society’s need for truth

International human rights law has long recognised that persons may be victims of human rights violation as individuals and collectively.¹⁰

10 Principle 1 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November 1985) and Article 8 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (21 March 2006) (hereinafter Basic Principles).

The right to the truth has therefore also been raised in relation to society.¹¹ In fact, there are a number of truth-stakeholders involved, some that may be bearers of rights and other stakeholders that have a corresponding duty. Arguments can be made to safeguard the rights of the surviving population by extending the right to know to society more generally. Victims experience crimes and their effects in varying and concomitant capacities: as an individual, direct victim; indirectly, as a family member of a direct victim;...