The right to the truth in international law: fact or fiction?

Volume 88 Number 862 June 2006 The right to the truthin international law:fact or fiction? Yasmin Naqvi*Yasmin Naqvi is a Ph.D. candidate in International Law at the Graduate Institute of International Studies, Geneva. She holds a DES in International Law (Graduate Institute of International Studies) and a BA/LLB with honours (University of Tasmania) AbstractThe right to the truth has emerged as a legal concept at the national, regional andinternational levels, and relates to the obligation of the state to provide information tovictims or to their families or even society as a whole about the circumstancessurrounding serious violations of human rights. This article unpacks the notion of theright to the truth and tests the normative strength of the concept against the practice ofstates and international bodies. It also considers some of the practical implications ofturning ‘‘truth'' into a legal right, particularly from the criminal law perspective.
‘‘The people have a right to the truth as they have a right to life, liberty and thepursuit of happiness.'' Epictetus (55 – 135) ‘‘Peace if possible, but truth at any rate.'' Martin Luther (1483 – 1546) Introduction: The significance of ‘‘legal truth'' Criminal processes, whether at the national or international level, are primarilyabout meting out justice for alleged wrongs committed by individuals. The processentered into, at least from a common law perspective, is not so much about This article is based upon a lecture given at the T.M.C. Asser Instituut in The Hague on 29 March 2006as part of the supranational criminal law lecture series.
Y. Naqvi – The right to the truth in international law: fact or fiction? finding the truth as it is offering evidence that proves guilt or innocence —evidence that is contested, put into question or interpreted in different ways — towin a case. The investigative method of civil law systems is arguably moreconcerned about finding the truth, but the end result is the same: the case is wonor lost by convincing or failing to convince a judge or jury of guilt or innocence.
The ‘‘legal truth'' is merely a by-product of a dispute settlement mechanism.
In trials dealing with international crimes, however, the significance of this by-product of legal truth has taken on a new dimension, owing no doubt tothe unique objectives that international criminal law is supposed to fulfil and thatgo way above and beyond merely finding guilt or innocence of particularindividuals. They range from such lofty goals as contributing to ‘‘the restorationand maintenance of peace''1 and ‘‘the process of national reconciliation''2 toothers, such as fighting against impunity, deterring or preventing future violations,satisfying victims' needs and upholding their rights, removing dangerous politicalplayers from the political scene, re-establishing the rule of law and reaffirming theprinciple of legality. They include the symbolic and ritualistic effect of the criminaltrial on divided communities, as well as the move away from community blameand toward individual responsibility, reconstructing national identities frominterpretations of the past through criminal legal analysis and process, and settingdown a historical record with a legal imprint.
How does the right to the truth come into play here? It is argued that this legal concept intersects with international criminal processes in various ways, attimes strengthening the intended purpose to prosecute persons accused ofinternational crimes and at times overriding the focus on the individual defendantand instead turning the attention of a case to the broader implications ofinternational criminal trials. The desire for truth may even be used to justify non-prosecution of certain alleged offenders in ‘‘amnesty-for-truth'' or ‘‘useimmunity'' situations. Some of the responses to the sudden termination of theMilosevic case before the International Criminal Tribunal for the formerYugoslavia (ICTY) as a result of the death of the former Yugoslav leader willsuffice to explain these implications in simple terms. Svetozar Marovic, thePresident of Serbia-Montenegro, commented: ‘‘With his death, history will bedeprived of the full truth.''3 Milan Kucan, former President of Slovenia, put itslightly differently, stating that: ‘‘Now history will have to judge Milosevic.''4 ICTYProsecutor Carla Del Ponte, on the other hand, while lamenting the loss of justicefor victims of the crimes for which Milosevic was accused, was keen to stress thatthe testimonies of 295 witnesses and some 5,000 exhibits presented to the court SC Res. 808 (1993), 22 February 1993, on the establishment of the International Criminal Tribunal forthe former Yugoslavia, preambular para. 9.
SC Res. 955 (1994), 8 November 1994, on the establishment of the International Criminal Tribunal forRwanda, preambular para. 7.
See BBC News, ‘‘Former Yugoslav President Slobodan Milosevic has died in the detention centre at theHague tribunal: Reaction to the news'', 12 March 2006, available at: http://news.bbc.co.uk/2/hi/europe/4796704.stm#world (last visited on 23 March 2006).
Volume 88 Number 862 June 2006 during the prosecution case ‘‘represent a wealth of evidence that is on therecord.''5 This was presumably to make the point that the lack of a judgment hasnot deprived the four-year trial from achieving some of its objectives, in particularthat of satisfying to some extent the right to the truth or setting down a historicalrecord. The question that remains is whether a legal judgment is necessary toaccord such evidence the status of representing ‘‘the truth.''6 At this point, it is enough to note that a right to the truth, if indeed such a right exists in international law, would intermesh strategically with the broaderobjectives of international criminal law, arguably including those of restoring andmaintaining peace (because by exposing the truth, societies are able to prevent therecurrence of similar events), facilitating reconciliation processes (becauseknowing the truth has been deemed essential to heal rifts in communities),7contributing to the eradication of impunity (because knowing the truth about whowas responsible for violations leads to accountability),8 reconstructing nationalidentities (by unifying countries through dialogue about a shared history)9 andsetting down a historical record (because the ‘‘truth'' of what happened can bedebated openly and vigorously in court, adding credibility to the evidenceaccepted in a criminal judgment). It could also be contended that the right to thetruth underlies the very process of criminal indictment by ensuring properinvestigation of crimes and transparency in the form of habeas corpus proceduresin the detention of individuals by the state, as well as by requiring public access to Press Conference by the ICTY prosecutor, Carla Del Ponte, The Hague, 12 March 2006, available at:http://www.un.org/icty/latest-e/index.htm (last visited on 23 March 2006).
In the same press conference, the ICTY prosecutor also underscored the Trial Chamber decision of16 June 2004, which rejected a defence motion to dismiss the charges for lack of evidence, therebyconfirming, in accordance with Rule 98bis, that the prosecution case contained sufficient evidencecapable of supporting a conviction on all 66 counts. However, this ruling cannot by any means beinterpreted as implying that Milosevic would have been found guilty. The only possible interpretation isthat it ‘‘could'' have done so. See Prosecutor v. Slobodan Milosˇevic´, Decision on Motion for Judgment ofAcquittal, IT-02-54-T, 16 June 2004, at para. 9.
See Supreme Decree No. 355 of the Chile National Commission on Truth and Reconciliation: ‘‘Onlyupon a foundation of truth will it be possible to meet the basic demands of justice and create thenecessary conditions for achieving true national reconciliation.'' See the ‘‘Report of the independent expert to update the Set of Principles to combat impunity'', DianeOrentlicher, Addendum: ‘‘Updated set of principles for the protection and promotion of human rightsthrough action to combat impunity'', UN Doc. E/CN.4/2005/102/Add.1, 8 February 2005 (hereinafter‘‘Updated Principles on Impunity''). Principle 2 declares that ‘‘[e]very people has the inalienable right toknow the truth about past events concerning the perpetration of heinous crimes and about thecircumstances and reasons that led, through massive or systematic violations, to the perpetration ofthose crimes.'' Principle 4 articulates that ‘‘[i]rrespective of any legal proceedings, victims and theirfamilies have the imprescriptible right to know the truth about the circumstances in which violationstook place and, in the event of death or disappearance, the victims' fate.'' Principle 1 states that it is anobligation of the state ‘‘to ensure the inalienable right to know the truth about violations.'' The firstdraft of these principles is contained in Annex II of the revised final report prepared by Mr. Joinetpursuant to Sub-Commission decision 1996/119, UN Doc. E/CN.4/Sub.2/1997/20/Rev.1.
See Act No. 12/2597, 14 May 1992, Germany: Law Creating the Commission of Inquiry on ‘‘WorkingThrough the History and the Consequences of the SED Dictatorship'', para. I.: ‘‘To work through thehistory and consequences of the SED [East Germany Communist Party, known as the German SocialistUnion Party] dictatorship in Germany is a joint task of all Germans. It is particularly important for thepurpose of truly unifying Germany.'' Y. Naqvi – The right to the truth in international law: fact or fiction? official documents. Where judgments have been made, the satisfaction of the rightto the truth may arguably form part of reparations to victims.10 It was all these slightly amorphous considerations that led the UN Commission on Human Rights (CHR), in its 61st session, to adopt Resolution2005/66, which ‘‘[r]ecognizes the importance of respecting and ensuring the rightto the truth so as to contribute to ending impunity and to promote and protecthuman rights.'' Yet it is one thing to recognize the importance of a right and quiteanother to set out its contours under international law, and for this reason theresolution goes on to request that the Office of the High Commissioner forHuman Rights (OHCHR) prepare a study on the right, ‘‘including information onthe basis, scope, and content of the right under international law,'' which will betaken into consideration at the next (62nd) session. The present article seeks toprovide some critical analysis of the conceptual underpinnings of this right — tounpack the notion of a right to the truth — and to examine the legalconsequences, if any, of this notion. In other words, an attempt is made todetermine whether it is a real right — identifiable, with clear parameters andsomething that can be implemented – or a piece of legal fiction, a narrative deviceused to fill the void where our current normative systems leave us wanting.
After first outlining its emergence under international law, the article begins the process of unpacking the meaning of the right to the truth, whichnecessitates delving into fields beyond international law (i.e., philosophy and tosome extent historiography). It then looks at how such notions have found theirway into international legal texts and jurisprudence and goes on to explore someof the consequences that turning ‘‘truth'' into a legal right may entail.
Brief overview of the emergence of the right to the truth underinternational law The right to the truth has emerged as a legal concept in various jurisdictions andin many guises. Its origins may be traced to the right under internationalhumanitarian law of families to know the fate of their relatives, recognized byArticles 32 and 33 of the 1977 Additional Protocol I to the Geneva Conventions of1949, as well as obligations incumbent on parties to armed conflicts to search forpersons who have been reported missing. Enforced disappearances of persons and 10 See Principle 11 of the ‘‘Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights and serious violations of humanitarian law'',CHR Res. 2005/35, 19 April 2005; ECOSOC Res. 2005/35, 25 July 2005, (hereinafter ‘‘Basic principles onremedies and reparation'') which states that ‘‘[r]emedies for gross violations of international humanrights law and serious violations of international humanitarian law include the victim's right to …access … relevant information concerning violations …'' Principle 22(b) provides that the right toreparation of the victim includes, as a modality of satisfaction, the ‘‘[v]erification of the facts and fulland public disclosure of the truth.'' Principle 24 further provides that: ‘‘victims and their representativesshould be entitled to seek and obtain information on the causes leading to their victimization and on thecauses and conditions pertaining to the gross violations of international human rights law and seriousviolations of international humanitarian law and to learn the truth in regard to these violations.'' Volume 88 Number 862 June 2006 other egregious human rights violations during periods of extreme, state-sponsored mass violence, particularly in various countries of Latin America butalso in other parts of the world, prompted a broader interpretation of the notionof the right to be given information about missing persons. It also led to theidentification and recognition of a right to the truth by various internationalorgans, in particular, the Inter-American Commission on Human Rights andCourt of Human Rights, the UN Working Group on Enforced or InvoluntaryDisappearances and the UN Human Rights Committee. These bodies progressivelydrew upon this right in order to uphold and vindicate other fundamental humanrights, such as the right of access to justice and to an effective remedy andreparation. They also expanded the right to the truth beyond information aboutevents related to missing or disappeared persons to include details of other seriousviolations of human rights and the context in which they occurred. Broadlyspeaking, the right to the truth, therefore, is closely linked at its inception tothe notion of a victim of a serious human rights violation. Like proceduralrights, it arises after the violation of another human right has taken place, andwould appear to be violated when particular information relating to the initialviolation is not provided by the authorities, be it by the official disclosure ofinformation, the emergence of such information from a trial or by othertruth-seeking mechanisms.
The rationale for such a right would appear to lie in the right of victims or of their families to be informed about the events in question so as to aid thehealing process. Among other things, it would offer a sense of closure, enable theirdignity to be restored and provide a remedy and reparation for violations of theirrights and/or the loss suffered. In addition, the right to the truth has been asafeguard against impunity. For this reason, it has been used to contest the validityof blanket amnesty laws shielding perpetrators of gross violations of human rightsunder international law, as well as to encourage more transparent and accountablegovernment.
In the aftermath of armed conflict or periods of internal strife, the right to the truth has often been invoked to help societies understand the underlyingcauses of conflicts or widespread violations of human rights. Many countries havesought to implement this right by establishing truth commissions or commissionsof inquiry. Arguably, the right to the truth may also be implemented by otherprocesses, such as public trials, the disclosure of state documents and the propermanagement of archives, and by ensuring public access to information.
The concept of truth In order to know what a right to the truth would look like or entail there needs tobe some understanding as to what is meant by truth. Philosophers have longgrappled with the meaning of truth. A traditional distinction has been drawnbetween truth as a social and as an intellectual matter. The question of whetherthere exists a ‘‘right'' to truth would appear to fall into the former category, Y. Naqvi – The right to the truth in international law: fact or fiction? namely that of truth as a social matter, given the legal conception of a right owedby the state to the individual.
A commonly accepted definition of truth is the agreement of the mind with reality. This should be distinguished from probable opinion. For WilliamJames, ‘‘true ideas are those we can assimilate, validate, corroborate and verify.''11In other words, the truth is measured by way of evidence. For Locke, ‘‘[t]ruth andfalsity belong … only to propositions'' — to affirmations or denials that involve atleast two ideas. This suggests a more adversarial schema, akin to ‘‘legal truth,''which may be decided by a judge or a jury. Kant summarizes this view neatly:‘‘truth and error … are only to be found in a judgement,'' which explains why ‘‘thesenses do not err, not because they always judge correctly, but because they do notjudge at all.''12 Interestingly, like the German word ‘‘Recht,'' the word for truth inArabic, ‘‘al-Iˆaqq'' (al-Haq), also means ‘‘right'' (i.e., as opposed to ‘‘wrong,'' butalso in the sense of a legal right) as well as ‘‘justice'' and even ‘‘law'' (although, likethe German word ‘‘Gesetz,'' there is also a separate word for that: qA suggests a conception of truth in line with Kant's summation, although in Islamictheology ‘‘the Truth'' is one of the inalienable characteristics of God and thereforehas an absolute and ‘‘a-human'' quality.13 In Christian doctrine, by comparison, the truth is seen as something that is ‘‘done'' by a person, and this action has both redeeming consequences (‘‘thetruth will set you free,'' John 8:32) and represents an act of God (‘‘he who doestruth [or: what is true] comes to the light, that it may be clearly seen that his deedshave been wrought in God,'' John 3:21).14 The metaphysical definition of truth aspresented by Thomas Aquinas accepts that judgment needs to be involved inascertaining the truth, but a judgment is only said to be true when ‘‘it conforms tothe external reality.''15 This aligns to some extent with Aristotle's well-knowndefinition of truth: ‘‘To say of what is that it is not, or of what is not that it is, isfalse, while to say of what is that it is, and of what is not that it is not, is true.''16This signifies a moral truth — to say what we mean. It indicates the existence of anobligation for the state to say what happened is what happened.
But here we are in the realm of a statement about what happened. If we accept Jacques Derrida's point that, ‘‘[t]here is nothing outside the text; all istextual play with no connection with original truth,''17 then suddenly the right to 11 William James, Essays in Pragmatism, Hafner Publishing Company, Inc., New York, 1948, p. 160.
12 Immanuel Kant, Critique of Pure Reason, ed. and transl. Paul Guyer & Allen W. Wood, Cambridge University Press, Cambridge, 1998 (emphasis added).
13 Matthijs Kronemeijer, ‘‘An Arab voice of compromise: Hazem Saghieh's In Defence of Peace (1997)'', MA thesis, Utrecht University, Department of Arabic, Modern Persian and Turkish Languages andCultures, p. 71.
14 For these points and quotations on Islamic and Christian theology, I am grateful to Matthijs Kronemeijer for his comments and assistance.
15 This is a restatement of the well-known statement: ‘‘Veritas est adaequatio rei et intellectus'' — Truth is the equation of thing and intellect. See Thomas Aquinas, De Veritate Q.1, A.1&3; cf. Summa TheologiaeQ.16.
16 Aristotle, Metaphysics, 1011b25.
17 Jacques Derrida, Prophets of Extremity, University of California Press, Berkeley, 1985, p. 3.
Volume 88 Number 862 June 2006 the truth starts to look more like a right to an official statement about whathappened. This may or may not accord with what did actually happen but stillrequires an obligation on the part of the state to disclose something. In otherwords, it becomes a matter of the use of language by the state.
Furthermore, if we take Derrida's view about writing not being confined to the Western notion of writing based on a phonetic alphabet or symbolized in abook, but instead encompassing the myriad forms of human expression, then such‘‘statements'' by the state need not be in a particular form but could be expressedaurally, visually, musically, pictorially or through sculpture. This could mean thatthe right to the truth could also be, at least partially, satisfied through such actionsby the state as erecting monuments dedicated to victims or works of art or musicalcompositions that explain what happened. And we do see this type of recognitionin some judgments. To give one example, the Human Rights Chamber for Bosnia-Herzegovina in its judgment in the ‘‘Srebrenica cases'' ordered the RepublikaSrpska, inter alia, to pay a lump sum to the Srebrenica-Potocari Memorial andCemetery. But from Derrida's point of view, this would merely be one ‘‘trace''entering into a play of differences, subject to different interpretations, alwaysdisputed and involved with power and violence, which never really yield finaltruths.18 But Derrida did not mean that one can simply give any old interpretationto a ‘‘trace''. He used certain protocols of reading, and in fact his approach tointerpretation is similar to what the famous Italian philosopher/historianBenedetto Croce suggested history is: exploring the historical truth of the pastout of a present interest.19 This notion — that truth is relative to present interest — reappears in various philosophical and historiographical writings. In his Principles ofPsychology, James argues that not only must our conceptions or theories be ‘‘ableto account satisfactorily for our sensible experience,'' but they are also to beweighed for their appeal ‘‘to our aesthetic, emotional, and active needs.''20 Thisidea recalls Walt Whitman's observation that ‘‘[w]hatever satisfies the soul istruth.''21 The relativism of truth is a concept that becomes important in the legal formulation of the right to the truth, because we can work out what informationneeds to be provided according to the needs of the right-holder. Also, thepragmatic theory of truth looks mainly to extrinsic signs, thus not to some featureof the idea or thought itself, but to its consequences. This theory is clearlyrepresented in some of the implementing mechanisms of the right to the truth,such as truth and reconciliation commissions, which by virtue of their mandateoften formulate their inquiries into the ‘‘truth'' of past events with an eye to how 18 Jacques Derrida, Of Grammatology, transl. Gayatri Chakravorty Spivak (1967), Johns Hopkins University Press, Baltimore, 1976, pp. 7–8, 60–62 ff.
19 Benedetto Croce, History: Its Theory and Practice, transl. Douglas Ainslie, Harcourt, Brace and Co., New York, 1921, pp. 11–26, reprinted as ‘‘History and chronicle'' in Hans Meyerhoff (ed.), The Philosophy ofHistory in Our Time, Doubleday Anchor, New York, 1959, p. 45.
20 William James, Principles of Psychology, 1890, Harvard University Press, Boston, 1983, p. 940.
21 Walt Whitman, Preface to Leaves of Grass (1855), Bantam Books, New York, 1983.
Y. Naqvi – The right to the truth in international law: fact or fiction? the truth-seeking process will contribute to reconciliation. For example, the statedobjective of the Commission of Truth and Friendship established by Indonesia andTimor-Leste in March 2005 is ‘‘[t]o establish the conclusive truth in regard to theevents prior to and immediately after the popular consultation in 1999, with a viewto further promoting reconciliation and friendship, and ensuring the non-recurrenceof similar events.''22 Going back to postmodernist accounts of truth, it is also worth pondering Michel Foucault's assertion that ‘‘truth isn't outside power, or lacking in power:… Truth is a thing of this world: it is produced only by virtue of multiple forms ofconstraint.''23 In other words, ‘‘truth'' is the construct of the political andeconomic forces that command the majority of power within the societal web. It isto be understood as ‘‘a system of ordered procedures for the production,regulation, distribution, circulation and operation of statements.''24 So wherewould such a perspective leave the right to the truth, if truth is nothing more thanan expression of power through societal structures? Postmodernists have been criticized for abandoning truth.25 A more prevalent criticism among the anti-postmodernists is the extreme relativism that,it has been argued, leaves the door open to fascist or racist views of history, withno way of saying these ideas are false. To give an example of this, one of thefamous justifications for the Nuremberg trials was to ‘‘establish incredible eventsby credible evidence'' in order that future generations could not doubt that suchevents took place.26 Yet despite these and other trials, Holocaust denial hasoccurred and gained momentum since the mid-1970s, and postmodernism has tosome extent been blamed for seeming to encourage these differing interpretationsof historical truth.27 The question of historical truth about the Holocaust came to a head when David Irving brought a lawsuit against Deborah Lipstadt for defamation.28 In herbook, Denying the Holocaust: The Growing Assault on Truth and Memory (1993),she recounted how Irving had become a denier in the late 1980s, convinced by‘‘evidence'' that it was chemically and physically impossible for the Germans to 22 Terms of Reference for the Commission of Truth and Friendship Established by the Republic of Indonesia and the Democratic Republic of Timor-Leste, 10 March 2005 (emphasis added).
23 Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977, Colin Gordon (ed.), Harvester Wheatsheaf, London, 1980, p. 114. See also the translation by Meaghan Morris and PaulPatton (eds.), ‘‘Truth and Power'', Michel Foucault: Power, Truth, Strategy, Feral Publications, Sydney,1979, pp. 131–132.
24 Foucault goes on to state that ‘‘Truth is linked in a circular relation with systems of power which produce and sustain it, and to effects of power which it induces and which extend it. A ‘regime' oftruth.'' 25 Joyce Appleby, Lynn Hunt and Margaret Jacob, Telling the Truth about History, W.W. Norton, New York, 1994, p. 213.
26 Report on Robert H. Jackson to the President on Atrocities and War Crimes, 7 June 1945, Department of State Bulletin, 10 June 1945, p. 1071.
27 For example, Richard J. Evans has argued that the ‘‘increase in scope and intensity of the Holocaust deniers' activities since the mid-1970s'' reflects the ‘‘postmodernist intellectual climate'', In Defence ofHistory, Granta Books, London, 1997, pp. 238–241. See the discussion of his views in Ann Curthoys andJohn Docker, Is History Fiction?, UNSW Press, Sydney, 2006, pp. 209–211.
28 David John Cadwell Irving v. Penguin Books Limited and Deborah E. Lipstadt, [2000] EWHC QB 115.
Volume 88 Number 862 June 2006 have gassed Jews on a significant scale. While the defence hired expert historians towork on the case, Irving chose to defend himself. The case ended in a verdictagainst Irving, with the court finding that the defendant's historiographicalcriticisms of Irving's work were justifiable:29 ‘‘for the most part the falsification ofthe historical record was deliberate and … Irving was motivated by a desire topresent events in a manner consistent with his own ideological beliefs even if thatinvolved distortion and manipulation of historical evidence.''30 Of course, this trial was not to determine the truth about the Holocaust but to examine the validity of Lipstadt's claims about Irving's work on theHolocaust. Nonetheless, the judgment was hailed as a ‘‘victory for truth,'' theDaily Telegraph for one proclaiming that ‘‘[it achieved] for the new century whatthe Nuremburg Tribunals or the Eichmann trial did for earlier generations.''31 YetLipstadt herself, in the book at the centre of the trial, ironically opposed the optionof bringing deniers to court, as this may ‘‘transform the deniers into martyrs onthe altar of freedom of speech'' and also raise the problem of the unpredictabilityof lawsuits.
The example of this trial takes us back to the notion of truth as an idea that is verifiable and corroborated by evidence, but it also raises the question ofhow far differing interpretations of the truth should be allowed to go. While somemay well caution against the permissive atmosphere resulting from thepostmodernist bent, which allows scope for deniers of even the best-documentedhistorical ‘‘facts,''32 a postmodernist would argue that manifold interpretations ofthe truth are essential to guard against absolutist regimes such as the Nazi one.33 From the foregoing discussion, the following points about the concept of truth can be adduced: Truth is a social matter. It may be generated by social procedures andstructures (suggesting something agreed upon). An example of this is a 1997UNESCO-led project entitled ‘‘Writing the history of Burundi,'' which wasdesigned to establish an official, scientific and agreed account of the history ofBurundi from its origin until 2000 ‘‘so that all Burundians can interpret it inthe same way.''34 29 Ibid., para. 13.141.
30 Ibid., para. 13.163. See also See Richard J. Evans, Telling Lies about Hitler: The Holocaust, History and the David Irving Trial, Verso, London, 2002, p. 198.
31 See http://www.hdot.org/ieindex.html (last visited on 26 March 2006).
32 Steven Aschheim, Culture and Catastrophe, Macmillan, Basingstoke, 1996, pp. 13 and 193.
33 Dan Stone, Constructing the Holocaust: A Study in Historiography, Vallentine Mitchell, London and Portland, 2003, p. 16.
34 This idea originated at the 1997 Conference on the History of Burundi convened by UNESCO with the participation of some 30 Burundian experts of different political tendencies. It was conceived in thespirit of the Arusha Agreement. Article 8, Protocol I of the Agreement sets out the principles andmeasures related to national reconciliation. Para. 1(c) states: ‘‘The [National Truth and Reconciliation]Commission shall also be responsible for clarifying the entire history of Burundi, going as far back aspossible in order to inform Burundians about their past. The purpose of this clarification exercise shallbe to rewrite Burundi's history so that all Burundians can interpret it in the same way.'' It was dividedby periods among some 50 authors, both Burundians and foreigners, experts in history, geography, Y. Naqvi – The right to the truth in international law: fact or fiction? It is something that can be verified or at least corroborated by evidence.35 It may consist of an official statement or judgment about events that occurred.
Truth implies an obligation to say that what happened did indeed happen (thisimplies an action of good faith and takes the form of an obligation of means,rather than result, much in the same way as the obligation to properlyinvestigate crimes).36 Such a ‘‘statement'' may take various forms of expression: visual, aural, artistic, etc.
‘‘Truth'' is relative to present needs and to its consequences.
There may be different accounts of ‘‘truth'' or differing ‘‘truths'' provided theseare verifiable (note, for instance, the report of the Truth and ReconciliationCommission of South Africa, which dealt with four differing types of truth:factual and forensic truth; personal and narrative truth; social truth; andhealing and restorative truth).
The right to the truth in international law As the ‘‘right to the truth'' is not enshrined in any universal legal instrument per se,there are two possible options to characterize it as a source of law: the right to the truthas a right under customary law or the right to the truth as a general principle of law.37 The right to the truth as a customary right Characterizing the right to the truth as a customary right under international lawentails some difficulties. The Statute of the International Court of Justice describescustom ‘‘as evidence of a general practice accepted as law.''38 Professor Meronpoints out that the ‘‘initial inquiry [into a customary human right] must aim atthe determination whether, at a minimum, the definition of the core normclaiming customary law status and preferably the contours of the norm have beenwidely accepted.''39 The right to the truth would appear to struggle to meet these linguistics and anthropology. The project's main objective was to serve as an educational tool in primaryand secondary schools and as a history manual for the public at large. See Report of the assessmentmission on the establishment of an international judicial commission of inquiry for Burundi, S/2005/158, 11 March 2005.
35 However, if something cannot be verified by positive evidence, this may be a practical problem rather than an existential one. This element should therefore not be applied strictly but only as a guidingprinciple within the framework of this discussion.
36 See Juan E. Me´ndez, ‘‘The Right to Truth'', in Christopher C. Joyner (ed.), Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the SiracusaConference 17–21 September 1998, St. Agnes, Ere s, 1998, p. 264 (‘‘…the responsible state must comply …[with the right to truth] to the limit of its possibilities and in good faith'').
37 See the formal sources of international law, listed in Art. 38 of the Statute of the International Court of 38 See Statute of the International Court of Justice, Art. 38(1)(b).
39 Theodor Meron, Human Rights and Humanitarian Law as Customary Law, Clarendon Press, Oxford, 1989, p. 93.
Volume 88 Number 862 June 2006 initial requirements. Beyond the clear norm under IHL of providing victims'families with information about the circumstances of a missing person, thedefinition of a more general ‘‘right to the truth'' appears uncertain. And yet theright to the truth has been recognized without question both by a number ofinternational organs and by a number of courts at the international and nationallevel, and has been enshrined as a guiding principle in numerous instrumentssetting up truth and reconciliation commissions, as well as in national legislation.
Some legal experts have also identified the right to truth as a customary right.40Clearly, there is a need to look a bit more carefully at these sources to see how theyhave identified such a right and what contours can be discerned.
In the following brief exposition of state practice and opinio juris, Professor Meron's preferred indicators for a customary human right provide auseful framework:41 ‘‘first, the degree to which a statement of a particular right inone human rights instrument, especially a human rights treaty, has been repeatedin other human rights instruments, and second, the confirmation of the right innational practice, primarily through the incorporation of the right in nationallaws.''42 There is no explicit statement of this right in a human rights treaty. Theclosest to this would be Article 24(2) of the draft International Convention for theProtection of All Persons from Enforced Disappearances adopted by the Inter-Sessional Working Group of the UN Commission on Human Rights on 23September 2005. It provides that: ‘‘[e]ach victim has the right to know the truthregarding the circumstances of the enforced disappearance, the progress andresults of the investigation and the fate of the disappeared person.''43 Apart fromthis, there is, as already mentioned, Article 32 of Additional Protocol I, which 40 See the meeting cited by L. Despouy, Special Rapporteur on States of Emergency in his 8th Annual Report, UN Doc. E/CN.4/Sub.2/1995/29 Corr. 1, according to which the experts concluded that theright to truth has achieved the status of a norm of customary international law. For a different view, seeMendez, above note 36, p. 260, fn. 9.
41 See also The Restatement (Third) of the Foreign Relations Law of the United States of 1987, 1 701: ‘‘Practice accepted as building customary human rights law includes: virtually universal adherence to theUnited Nations Charter and its human rights provisions, and virtually universal and frequentlyreiterated acceptance of the Universal Declaration of Human Rights even if only in principle; virtuallyuniversal participation of states in the preparation and adoption of international agreementsrecognizing human rights principles generally, or particular rights; the adoption of human rightsprinciples generally, or particular rights; the adoption of human rights principles by states in regionalorganizations in Europe, Latin America, and Africa … general support by states for United Nationsresolutions declaring, recognizing, invoking, and applying international human rights principles asinternational law; action by states to conform their national law or practice to standards or principlesdeclared by international bodies, and the incorporation of human rights provisions, directly or byreference, in national constitutions and laws; invocation of human rights principles in national policy, indiplomatic practice, in international organization activities and actions; and other diplomaticcommunications or action by states reflecting the view that certain practices violate internationalhuman rights law, including condemnation and other adverse state reactions to violations by otherstates. The International Court of Justice and the International Law Commission have recognized theexistence of customary human rights law…. Some of these practices may also support the conclusionthat particular human rights have been absorbed into international law as general principles common tothe major state legal systems.'' 42 Meron, above note 39, p. 94.
43 UN Doc. E/CN.4/2005/WG.22/WP.1/REV.4, Art. 24(2).
Y. Naqvi – The right to the truth in international law: fact or fiction? codifies the right to know the fate of relatives during an international armed conflict.
The analysis of customary international humanitarian law by the InternationalCommittee of the Red Cross (ICRC) has confirmed that this is a rule of customarylaw and is applicable in both international and non-international armed conflicts.44In the transference of this right under IHL to a right under human rights law, thewheel has, as it were, turned full circle. In fact, it was numerous resolutions of theUN General Assembly since 1974 on the rights of families of missing persons orthose subjected to enforced disappearances that referred to ‘‘the desire to know'' as a‘‘basic human need'' and prompted the elaboration of Article 32 of Protocol Iadditional to the 1949 Geneva Conventions.45 This provision was then used byhuman rights mechanisms — the ad hoc Working Group on the Situation of HumanRights in Chile, the UN Working Group on Enforced and InvoluntaryDisappearances and the Inter-American Commission on Human Rights — as thebasis for developing a right to the truth in relation to the crime of enforceddisappearances46 and later to other human rights violations.47 Apart from thesesources, however, human rights treaties do not explicitly codify the obligation of thestate to provide information to victims of serious human rights abuses.
Despite this apparent hurdle to customary law status, the right to the truth has been inferred from a number of other rights of human rights treaties.
The Human Rights Committee (HRC), the monitoring body of the InternationalCovenant on Civil and Political Rights (ICCPR) of 1966, has recognized the rightto know as a way to end or prevent the occurrence of psychological torture(ICCPR, Article 7) of families of victims of enforced disappearances48 or secretexecutions.49 The HRC also found that in order to fulfil its obligation to providean effective remedy, states party to the ICCPR should provide information about 44 Rule 117 in Customary International Humanitarian Law, Volume I, Rules, ICRC, Cambridge University Press, 2005, p. 421.
45 See resolutions of the General Assembly: 3220 (XXIX) of 6 November 1974, 33/173 of 20 December 1978, 35/193 of 15 December 1980, 36/163 of 16 December 1981, 37/180 of 17 December 1982, 38/94 of16 December 1983, 39/111 of 14 December 1984, 40/147 of 13 December 1985, 41/145 of 4 December1986, 42/142 of 7 December 1987, 43/159 of 8 December 1988, 44/160 of 15 December 1989, 45/165 of18 December 1990, 46/125 of 17 December 1991 and 47/132 of 18 December 1992.
46 ‘‘First Report of the Working Group on Enforced or Involuntary Disappearances to the Commission on Human Rights'', UN Doc. E/CN.4/1435, 22 January 1981, para. 187, and Annual Report of the Inter-American Commission of Human Rights, 1985–1986, OEA/Ser.L//V/II.68, Doc. 8 rev 1, 28 September1986, p. 205.
47 Inter-American Commission, Report No. 136/99, of 22 December 1999, Case of Ignacio Ellacrı´a et al., 48 See the explanation by Mr Bertil Wennergren, member of the Human Rights Committee, in his Individual Opinion in the cases: R. A. V. N. et al. (Argentina), communication Nos. 343, 344 and 345/1988, Decision of inadmissibility of 26 March 1990, UN Doc. CCPR/C/38/D/343/1988 (Appendix); S. E.
(Argentina), communication No. 275/1988, Decision of inadmissibility of 26 March 1990, UN Doc.
CCPR/C/38/D/275/1988 (Appendix); see also, inter alia: Views of 16 July 2003, Sarma. Sri Lanka case,Communication No 950/2000, UN Doc. CCPR/C/77/D/887/1999, para. 9.5; ‘‘Concluding observationsof the Human Rights Committee: Algeria'', UN Doc. CCPR/C/79/Add.95, of 18 August 1998, para. 10;and ‘‘Concluding observations of the Human Rights Committee: Uruguay'', UN Doc. CCPR/C/79/Add.90, of 8 April 1998, para. C.
49 Views of 3 April 2003, Case of Lyashkevich v. Belarus, Communication No 887/1999, UN Doc. CCPR/C/ 77/D/950/2000, para. 9.2.
Volume 88 Number 862 June 2006 the violation or, in cases of death of a missing person, the location of the burialsite.50 The right to know the truth has also been invoked in relation to protectionof the family guaranteed in Article 23 of the ICCPR, as well as the right of the childto preserve his or her identity, including nationality, name and family relations, ascontained in Article 8 of the Convention on the Rights of the Child of 1989 (CRC),the right of the child not to be separated from its parents as laid down in Article 9thereof, and other provisions of that convention.51 At the regional level, the European Court of Human Rights has also inferred a right to the truth as part of the right to be free from torture or ill-treatment, the right to an effective remedy, and the right to an effectiveinvestigation and to be informed of the results.52 Similarly, the Court has held thata state's failure to conduct an effective investigation ‘‘aimed at clarifying thewhereabouts and fate'' of ‘‘missing persons who disappeared in life-threateningcircumstances'' constitutes a continuing violation of its procedural obligation toprotect the right to life (Article 2 of the European Convention on HumanRights).53 The African Commission on Human and Peoples' Rights has followed asimilar approach to that of the European Court of Human Rights.54 TheCommission's ‘‘Principles and guidelines on the right to a fair trial and legalassistance in Africa''55 infers a right to the truth as a constitutive part of the rightto an effective remedy.56 The Inter-American Commission on Human Rightsstands apart as having presented the right to know the truth as a direct remedy initself, based on Article 9(1) of the Inter-American Convention, which stipulatesthat ‘‘a State party is obligated to guarantee the full and free exercise of the rightsrecognized by the Convention.''57 Its view is that ensuring rights for the futurerequires a society to learn from the abuses of the past. For this reason, this right toknow the truth entails both an individual right applying to the victim and familymembers and a general societal right.58 However, the Inter-American Commission 50 Ibid., para. 11; Views adopted on 30 March 2005, Khalilova v. Tajikistan case, Communication No. 973/ 2001, UN Doc. CCPR/C/83/D/973/2001; and Views adopted on 16 November 2005, Valichon Aliboev v.
Tajikistan case, Communication No. 985/2001, UN Doc. CCPR/C/85/D/985/2001.
51 UN Doc. E/CN.4/Sub.2/1991/20, Annex I, p. 45.
52 See, inter alia, Judgment of 25 May 1998, Kurt v. Turkey, Application No. 24276/94; Judgment of 14 November 2000, Tas v. Turkey, Application No. 24396/94; and Judgment of 10 May 2001, Cyprus v.
Turkey, Application No. 25781/94.
53 Judgment of 10 May 2001, Cyprus v. Turkey, Application No. 25781/94, para. 136; see also, inter alia, Judgment of 18-12-1996, Aksoy v. Turkey, Application No. 21987/93; and Judgment of 28 March 2000,Kaya v. Turkey, Application No. 22535/93). This also applies where non-state parties may be involved:Tanrikulu v. Turkey, 1999-IV Eur. Ct. H.R. 459 (1999).
54 Amnesty International vs, Sudan case, Communications No. 48/90, 50/91, 52/91, 89/93 (1999), para. 54.
See Art. 19(3) of the African Charter on the Rights and Welfare of the Child.
55 African Union Doc. DOC/OS(XXX)247).
56 Principle C) states that ‘‘the right to an effective remedy includes: … 3. access to the factual information concerning the violations.'' 57 Inter-American Commission, Report No. 136/99, of 22 December 1999, Case of Ignacio Ellacrı´a et al. v.
El Salvador, para. 221.
58 See also Annual Report of the Inter-American Court of Human Rights, 1985–1986, OEA/Ser.L//V/II.68, Doc. 8 rev 1, of 28 September 1986, p. 205; Annual Report of the Inter-American Court of Human Rights,1987–1988, OEA/Ser.L/V/II. 74, Doc. 10 rev 1, of 16 September 1988, p. 359.
Y. Naqvi – The right to the truth in international law: fact or fiction? has also linked the right to truth to other obligations contained in the AmericanConvention on Human Rights, such as the prohibitions of torture andextrajudicial executions59 and the right to simple and prompt recourse for theprotection of the rights enshrined in the Convention (Article 25). The latterprovision has been used as the basis for inferring the right to the truth both for therelatives of victims and for society as a whole.60 The Inter-American Court ofHuman Rights has recognized the right of relatives of the victims of forceddisappearance to know their fate and whereabouts.61 It has also recognized theright of victims and their next of kin to obtain clarification of the facts relating tothe violations and the corresponding responsibilities of the competent stateorgans through investigation and prosecution established in Articles 8 (right to ahearing by a competent, independent and impartial tribunal) and 25 (right to aneffective remedy and judicial protection) of the American Convention on HumanRights.62 The Court has held that the right to the truth is not limited to cases ofenforced disappearances but also applies to any kind of gross human rightsviolation.63 Does the repeated inference of a right to information about the circumstances of serious human rights violations as a way to vindicate othercodified rights fulfil Meron's requirement of a repeated statement of aparticular right in human rights instruments? Or are we dealing with anarrative device used by courts and human rights bodies to merely strengthenand give detail to those rights codified in the conventions? To seek furtherguidance on whether the right to the truth is a customary source of law, it maybe useful to look at other instances of international practice, such as GeneralAssembly and Security Council resolutions. The latter have repeatedlyunderlined the importance of establishing the truth,64 whether by truthcommissions or by establishing commissions of inquiry that may lead toprosecutions, for the consolidation of peace and reconciliation and to fightimpunity.65 General Assembly resolutions have also noted these crucial links 59 Inter-American Commission, Report No. 136/99, of 22 December 1999, Case of Ignacio Ellacrı´a et al. v.
El Salvador, para. 221.
60 Ibid., para. 255; Report 1/99 of 27 January 1999, Lucio Parada et al. v. El Salvador, para. 153.
61 Inter-American Court of Human Rights Judgment of 29 July 1988, Vela´squez Rodrı´guez case, in Series C: Decisions and Judgments, No. 4, para. 181, p. 75; Inter-American Court of Human Rights, Judgmentof 20 January 1989, Godı´nez Cruz case, in Series C: Decisions and Judgments, No. 5; Judgment of3 November 1997, Castillo Pa´ez case; Judgment of 24 January 1998, Blake case; and Judgment of25 November 2000, Bamaca case.
62 Inter-American Court of Human Rights, Judgment of 24 January 1998, Blake case, para. 97 and Judgment of 25 November 2000, Bamaca case, para. 201.
63 Judgment of 14 March 2000, Barrios Altos case, para. 48.
64 See also Madeleine Albright, US Ambassador to the UN, in her statement to the Security Council at the time of the adoption of Resolution 827: ‘‘Truth is the cornerstone of the rule of law, and it will pointtowards individuals, not peoples, as perpetrators of war crimes. And it is only the truth that can cleansethe ethnic and religious hatreds and begin the healing process'', Provisional Verbatim Record of the3217th Meeting, 25 May 1993, SC Doc. S/PV 3217.
65 See e.g. SC Res 1606 (2005) on Burundi, preambular paras. 2 and 7; SC Res. 1593 (2005) on Darfur, Sudan, para. 5; SC Res. 1468 (2003) on the Democratic Republic of Congo, para. 5; SC Res. 1012 (1995) Volume 88 Number 862 June 2006 and have on several instances called for the setup of investigatory bodies toproperly investigate serious violations of human rights and to inform victimsand society of the results of these investigations.66 The UN Secretary-General has explicitly referred in public statements to a right to the truthfor victims,67 as has the High Commissioner for Human Rights in relation tothe right to truth both for society and for individual victims.68 Moreover, anumber of the reports of the Secretary-General or reports submitted to himby commissions established under his auspices have reiterated the need forthe truth to be the basis of reconciliation and peacemaking efforts.69 TheSecretary-General has also recognized the need for the truth in cases where theUN failed to protect persons from serious human rights abuses (e.g. byinstituting an independent inquiry into the actions of the UN during the 1994genocide in Rwanda).70 The General Assembly also called upon the Secretary-General to provide a comprehensive report on the fall of Srebrenica and thefailure of the ‘‘safe area policy.''71 However, the most explicit recognition of a‘‘right to the truth'' may be found in the study of the independent expert onimpunity appointed by the UN Commission on Human Rights, Mr LouisJoinet, who in his final report of 1997 identified an inalienable right to thetruth: ‘‘Every people has the inalienable right to know the truth about past eventsand about the circumstances and reasons which led, through the consistentpattern of gross violations of human rights, to the perpetration of aberrant on Burundi, preambular para. 8; SC Res. 935 (1994) on Rwanda; and SC Res. 780 (1992) on the formerYugoslavia.
66 See GA Res. 57/105 (2003) on East Timor, para. 12; GA Res. 57/161 (2003) on Guatemala, para. 17; GA Res. 55/118 (2001) on Haiti, para. 7; GA Res. 53/187 (2000) on Haiti, para. 8, GA Res. 48/149 (1993) onEl Salvador, para. 4; GA Res. 42/147 (1987) on Chile, para. 10; GA Res. 40/145 (1985) on Chile, para. 6;GA Res. 35/188 (1980) on Chile, paras. 6–8; GA Res. 34/179 (1979) on Chile, GA Res. 33/172 (1978) onCyprus, para. 1; GA Res. 32/128 (1977) on Cyprus, para. 1; GA Res. 32/118 (1977) on Chile, para. 6; GARes. 3450 (XXX) on Cyprus, preambular para. 5 and para. 1; GA Res. 3448 (XXX) on Chile, para. 2.
67 See Press Release SG/SM/9400, Secretary-General Urges Respect for Ceasefire as Colombia Peace Talks Open, 1 July 2004: ‘‘The Secretary-General reiterates his belief that the rights of truth, justice andreparations for victims must be fully respected.'' 68 Statement by Mary Robinson, United Nations High Commissioner for Human Rights, at the 55th Annual DPI/NGO Conference, ‘‘Rebuilding Societies Emerging from Conflict: A Shared Responsibility'',9 September 2002: ‘‘[Mechanisms such as TRCs] respects the right of nations to learn the truth aboutpast events. Full and effective exercise of the right to the truth is essential if recurrence of violations is tobe avoided.'' 69 See the ‘‘Report of the assessment mission on the establishment of an international judicial commission of inquiry for Burundi'', S/2005/158, 11 March 2005; ‘‘Report of the International Commission ofInquiry on Darfur to the Secretary-General'', S/2005/60, 1 February 2005, para. 617; ‘‘Report of theInternational Commission of Inquiry on East Timor to the Secretary-General'', January 2000, UN Doc.
A/54/726, S/2000/59, 31 January 2000, para. 146.
70 ‘‘Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda'', UN Doc. S/1999/1257, 16 December 1999.
71 Report of the Secretary-General pursuant to General Assembly Resolution 53/35, ‘‘The fall of Srebrenica'', UN Doc. A/54/549, 15 November 1999. See para. 7: ‘‘I hope that the confirmation orclarification of those accounts [of the fall of Srebrenica contained in books, journal articles and pressreports] contributes to the historical record on this subject.'' Y. Naqvi – The right to the truth in international law: fact or fiction? crimes. Full and effective exercise of the right to the truth is essential to avoidany recurrence of such acts in the future.''72 According to Joinet, this right applied both to the individual victim and his or her family and was also a collective right. The corollary to the latter is a‘‘duty to remember'' on the part of the state: ‘‘to be forearmed against theperversions of history that go under the name of revisionism or negationism, forthe history of its oppression is part of a people's national heritage and as suchmust be preserved.''73 These principles were recently updated by Professor DianeOrentlicher, appointed for this purpose by the Commission. As well as affirmingthat ‘‘[e]very people has the inalienable right to know the truth about past eventsconcerning the perpetration of heinous crimes…''74 the Updated Principles onImpunity also recognize an imprescriptible right of victims and their families toknow the truth about the circumstances in which violations took place and, in theevent of death or disappearance, the victims' fates.75 The Updated Principles,therefore, set out differing contours of the right to the truth for victims andvictims' family members and for society in general. For victims and family, theright entails an obligation for the state to provide specific information about thecircumstances in which the serious violation of the victim's human rightsoccurred, as well the fate of the victim. This information may include the place ofburial if the victim was killed. For society in general, the right to the truth imposesan obligation on the state to disclose information about the circumstances andreasons that led to ‘‘massive or systematic violations,''76 and to do so by takingappropriate action, which may include non-judicial measures.77 Such duality inthe contours of the right to the truth is consistent with the two-track evolution ofthis concept in regard to (1) single violations of human rights that entailindividual and case-specific remedies (i.e., for the victim or victim's family), asreflected in the jurisprudence of human rights courts and monitoring bodies, and(2) mass violations of human rights that necessitate a broader inquiry into thereasons and causes for such violence (i.e., for society in general) as established bythe practice of truth commissions or commissions of inquiry and in resolutions ofthe UN General Assembly and Security Council.
Other special procedures of the CHR have also utilized the legal value of truth in their sets of principles, particularly with regard to the right to a remedyand reparation for victims of gross violations of human rights and IHL.78 Clearly, 72 ‘‘Question of the impunity of perpetrators of human rights violations (civil and political)'', final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119, UN Doc. E/CN.4/Sub.2/1997/20/Rev.1., Annex I, Principle 1.
73 Ibid., para. 17.
74 Updated Principles on Impunity, above note 8, Principle 2.
75 Ibid., Principle 4, ‘‘The victims' right to know''.
76 Ibid., Principle 2, ‘‘The inalienable right to the truth''.
77 Ibid., Principle 5, ‘‘Guarantees to give effect to the right to know''.
78 See ‘‘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'',CHR Res. 2005/35, Annex, Principle 22.
Volume 88 Number 862 June 2006 the weight of general statements of international bodies as evidence of customcannot be assessed without considering the actual practice of states. At the sametime, the community values reflected in such statements generally enjoy strongpublic support and states are unlikely to face the political consequences of refusingthe norm and becoming a persistent objector.79 With regard to Meron's second indicator for a customary norm of human rights — confirmation of the right in national practice — a first and obviousinstance of national practice is the establishment of truth commissions in morethan 30 countries in all regions of the world where serious human rights violationshave been perpetrated on a massive scale. However, while this fact may provideevidence of widespread practice, the real question for the purposes of this paper iswhether the establishment of these mechanisms flows from a sense of a legalobligation to provide the truth. Most of the constitutive instruments setting themup refer to the need of the victims, their relatives and society to know the truthabout what has taken place in order to facilitate the reconciliation process; tocontribute to the fight against impunity; to re-install or to strengthen democracy,the rule of law and public confidence in the ruling authority; and to prevent therepetition of such events.80 But the right to the truth, in its individual or collectivedimension, has only been explicitly cited as a legal basis in two of the instrumentssetting up ‘‘truth commissions'' or other similar mechanisms.81 The otherconstitutive instruments, while underlining the importance of revealing the truthabout serious violations of human rights, refer more to the expediency of such anapproach to achieve the aforementioned goals, rather than to an obligation for thestate to establish the truth.82 For example, the recently adopted Act to Establish theTruth and Reconciliation Commission of Liberia, enacted on 12 May 2005, refersto the recognition ‘‘that introspection, national healing and reconciliation will begreatly enhanced by a process which seeks to establish the truth through a public 79 Meron, above note 39, p. 89.
80 See the Peace Agreement between the government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Art. XXVI) and The Truth and Reconciliation Commission Act 2000 of Sierra Leone(Art. 6); the Chilean Supreme Decree [Decreto Supremo] No. 355 of 25 April 1990, establishing the Truthand Reconciliation Commission; El Salvador: Mexico Peace Agreements — Provisions Creating theCommission on Truth, Mexico City, 27 April 1991; German Law No. 12/2597 of 4 May 1992,establishing the Commission of Inquiry on ‘‘Working through the History and the Consequences of theSED Dictatorship''; the Terms of Reference for the Commission of Truth and Friendship of Timor-Leste, of 10 March 2005; The National Reconciliation Commission Act of Ghana, 2002; and SouthAfrica's Promotion of National Unity and Reconciliation Act No. 34 of 1995. See also Priscilla Hayner,Unspeakable Truths: Confronting State Terror and Atrocity, Routledge, New York, 2001.
81 Peruvian Supreme Decree [Decreto Supremo] No. 065-2001-PCM of 2 June 2001, preambular para. 4; Agreement on the establishment of the Commission to clarify past human rights violations and acts ofviolence that have caused the Guatemalan population to suffer, Oslo, 23 June 1994, preambular para. 2.
82 See Uganda's Legal Notice Creating the Commission of Inquiry into Violations of Human Rights, The Commission of Inquiry Act, Legal Notice No. 5, 16 May 1986, which deems it ‘‘expedient'' to inquireinto the causes of and possible ways to prevent the serious violations of human rights falling under themandate. The South African Promotion of National Unity and Reconciliation Act 1995, Act 95-34,26 July 1995, in preabular para. 3, finds that ‘‘it is deemed necessary to establish the truth in relation topast events as well as the motives for and circumstances in which gross violations of human rights haveoccurred, and to make the findings known in order to prevent a repetition of such acts in the future.'' Y. Naqvi – The right to the truth in international law: fact or fiction? dialogue which engages the nation…''83 In the case of Liberia, the legal obligationto establish a truth-seeking mechanism derived from Article XIII of theComprehensive Peace Agreement of 18 August 2003.84 This has also been thecase for a number of other states that have instituted truth and reconciliationcommissions or similar mechanisms.85 At the same time, the inclusion of theobligation to set up a truth commission in a peace agreement may itself constituteevidence of state practice acknowledging the right to truth in the aftermath ofserious violations. But while the decision to set up a truth commission may be aquestion to be decided at the national level, there may well be a universal principlerequiring states to preserve archives that enable societies to exercise their right toknow the truth about past repression, as suggested in the Updated Principles onImpunity.86 Assuming that these practices may, by their prolific and widespread use, be considered as evidence of a customary right to truth, it is worth pausing toconsider what definition and contours of the right to the truth such evidenceaffords. First of all, such mechanisms, though they vary greatly in terms ofmandate, generally deal with serious violations of humanitarian and human rightslaw. Secondly, the mandate is generally not limited to specific events but isdirected more to periods of armed conflict or serious civil unrest or staterepression.87 It is designed to elucidate the nature, causes and extent of humanrights violations, as well as the underlying factors, antecedents and the context thatled to such violations, together with identifying those responsible.88 Third, ‘‘thetruth'' would appear to be owed both to individuals and to society as a whole.
83 Preambular para. 8 of the Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia, enacted by the National Transitional Legislative Assembly on 12 May 2005 and approved by theChairman of the National Transitional Government of Liberia on 10 June 2005.
84 Art. XIII of the Comprehensive Peace Agreement, City of Accra, Republic of Ghana, 18 August 2003, provides for the establishment of a Truth and Reconciliation Commission to ‘‘provide a forum that willaddress issues of impunity, as well as an opportunity for both victims and perpetrators of human rightsviolations to share their experiences in order to get a clear picture of the past to facilitate genuine healingand reconciliation.'' 85 This was also the case for Sierra Leone (Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Art. XXVI)); Guatemala (the Historical ClarificationCommission (CEH) was established on 23 June 1994 as part of peace agreements between theGuatemalan government and the National Guatemalan Revolutionary Unit (URNG)); and El Salvador(the Commission on the Truth for El Salvador was mandated by the UN-brokered peace agreements of16 January 1992).
86 See Updated Principles on Impunity, Principle 3, and the Report of the independent expert, para. 19, above note 8.
87 The mandate of the Commission for Reception, Truth and Reconciliation in East Timor, which authorizes the Commission to consider human rights violations over a 25-year period from 1974,provides a good example of this. See section 13.2 Regulation No. 2001/10 on the Establishment of aCommission for Reception, Truth and Reconciliation in East Timor, UNTAET/REG/2001/10, 13 July2001.
88 See ibid., section 13 entitled ‘‘Truth'' that identifies six ways in which the Commission should seek to establish the truth, namely by inquiring into: (1) the extent of human rights violations, including thosepart of a systematic pattern of abuse; (2) the nature, causes and extent of human rights violations,including the antecedents, circumstances, factors, context, motives and perspectives that led to suchviolations; (3) which persons, authorities, institutions and organisations were involved in the violations;(4) whether the violations were the result of deliberate planning, policy or authorisation on the part of Volume 88 Number 862 June 2006 Fourth, the ‘‘truth'' to be uncovered by such mechanisms is generally meant to beconducive to reconciliation processes — both the truth-seeking process and theresults of the investigations are restorative in character, thus reverting again to thenotion that truth is relative to present needs. The reports of these commissionshave referred to the truth-telling function, inter alia, as ‘‘a critical part of theresponses of states … to serious acts of human rights violations,''89 an‘‘indispensable basis for measures to repair,''90 the ‘‘only way to achieve thisobjective [of reconciliation]''91 and a means to give effect to ‘‘the inalienable rightto truth.''92 In measuring their actual effect, Michael Ignatieff has famouslyasserted that ‘‘[a]ll that a truth commission can achieve is to reduce the number oflies that can be circulated unchallenged in public discourse.''93 If that is all it does,it is already a lot for these deeply divided communities, but probably much moreis achieved by these mechanisms in the sense of a ‘‘collective catharsis'' and a‘‘collective conscience'' opposed to any repetition of such acts.94 Moreover, theofficial public nature of a truth commission transforms the historic truth intoofficial acknowledgement of the harm done to victims — a key value for nationalreconciliation.95 In terms of national legislation, in several countries the right of families to know the fate of their missing relatives has been incorporated in domesticlegislation or in military manuals.96 One country, Colombia, adopted a law in July2005 recognizing the right to the truth of victims of human rights violations andcrimes under international law, and of society in general.97 Generally speaking, theright to the truth of victims of human rights violations and their relatives has not any state or any of its organs or of any political organisation, militia group, liberation movement, orother group or individual; (5) the role of both internal and external factors in the conflict; and (6)accountability, political or otherwise, for the violations.
89 National Reconciliation Commission Report of Ghana, 16 May 2005, para. 1.1.2.
90 Report of the Chilean National Commission on Truth and Reconciliation, University of Notre Dame Press, Notre Dame, Indiana, 1993, Vol. I/II, Part 1, Chapter 1.
91 Guatemala: Memory of Silence, Commission for Historical Clarification (CEH), February 1999, 92 Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. I, 5 October 2004, 93 M. Ignatieff, ‘‘Articles of Faith'', Index on Censorship, Vol. 25, No. 5, 1996, p. 113.
94 The former President of the Inter-American Court of Human Rights, Pedro Nikken, has argued that the discovery of truth fulfils a dual function: ‘‘First, it is useful for society to learn, objectively, whathappened in its midst, which translates into a sort of collective catharsis. And second, it contributes tocreating a collective conscience as to the need to impede the repetition of similar acts…'', quoted inWitness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. I, 5 October 2004,p. 79.
95 See Me´ndez, above note 36, at p. 269, citing Thomas Nagel.
96 See inter alia: Customary International Humanitarian Law, Volume II, Practice, Part. 2, ICRC, Cambridge University Press, Cambridge, 2005, pp. 2766–2767; Bosnia and Herzegovina, Law on Missing Persons,2004 (on file with author).
97 Law No. 975 of 25 July 2005, entitled ‘‘Law on justice and peace''. In Article 7 it defines the right to truth as belonging to society. However, this legislation has been criticized by the OHCHR as not leading to thetruth because there is no condition of truth-telling for judicial benefits, the time allowed forinvestigations is limited and there are few incentives for the Attorney-General's office to search for thetruth.
Y. Naqvi – The right to the truth in international law: fact or fiction? been explicitly recognized in national constitutions. However, the majority ofconstitutional acts do recognize and protect freedom of information, including theright to seek information. Notably, the United States Freedom of Information Act(FOIA) and South Africa's Promotion of Access to Information Act have beenused to disclose the truth about human rights violations committed in El Salvador,Guatemala, Peru and South Africa, and to help the work of truth commissions.98 National courts have also issued judgments signalling the importance of a right to the truth in relation to enforced disappearances that is based on the rightto mourning (derecho al duelo),99 the right to justice,100 the need for historicalclarification, individual and societal healing, and the prevention of futureviolations,101 and as a means to ensure a democratic state based on the rule oflaw.102 In the ‘‘Srebrenica cases,'' the Human Rights Chamber of Bosnia andHerzegovina based the right of families to know the truth about the fate andwhereabouts of some 7,500 missing men and boys on the rights established in theEuropean Convention on Human Rights. In particular, it looked at the right notto be subjected to torture or ill-treatment (because not knowing the truth aboutthe fate of relatives prevented healing and closure and amounted to an ongoingviolation of the Convention's Article 3),103 the right to family life (because wheninformation exists within the possession or control of the state and the statearbitrarily and without justification refuses to disclose it to the family member, itdoes not protect this right)104 and the state's duty to conduct effectiveinvestigations,105 which was also linked to a violation of Article 3. Althoughthe decisions of courts are considered only as a ‘‘subsidiary means for thedetermination of rules,'' according to Article 38 (1)(d) of the Statute of the 98 UN Doc. E/CN.4/2004/88, para. 20. See also Mexican Federal Act on Access of Information (Ley Federal de Acceso a la Informacio´n) enacted in 2002 that bars the withholding of documents that describe ‘‘graveviolations'' of human rights, and the Stasi Files Act of Germany of 1991, which facilitates individualaccess to personal data stored by the State Security Service [Stasi – former East German secret police] inorder to clarify what influence the service had on the individual's life and ensures and promotes ‘‘thehistorical, political, and juridical reappraisal of the activities of the State Security Service.'' Stasi Files Act(Stasi-Unterlagengesetz, StUG), Federal Law Gazette I, 1991, p. 2272, as amended.
99 See inter alia: Agreement of 1 September 2003 of the National Chamber for Federal Criminal and Correctional Matters (Ca´mara Nacional en lo Criminal y Correccional Federal), case of Sua´rez Mason,Rol. 450; Agreement of 1 September 2003 of the National Chamber for Federal Criminal andCorrectional Matters, case of Escuela Meca´nica de la Armada, Rol. 761; Judgment of 8 December 2004 ofthe National Chamber for Federal Criminal and Correctional Matters, case of Maria Elena Amadio, Rol.
07/04-P; and Judgment of the Oral Tribunal in Criminal Federal Matters No. 3 (Tribunal Oral en loCriminal Federal), case of Carlos Ale´berto Telleidı´n and others — homicide (Amia Case), Rol. 487-00.
100 Chamber for Federal Criminal and Correctional Matters, Decision of 18 May 1995, case of Maria Aguiar Lapao´, Rol. 450.
101 Supreme Court of the Nation (Argentina), Judgment of 14 June 2005, S. 1767. XXXVIII, ‘‘Simo´n, Julio He´ctor y otros s/ privacio´n ilegı´tima de la libertad'' case, Rol. No. 17.768.
102 Ibid., paras. 15 and 19. See inter alia Constitutional Court of Colombia, Judgment of 20 January 2003, Case T-249/03; Judgment C-228 of 3 April 2002; and Judgment C-875 of 15 October 2002.
103 Decision on Admissibility and Merits of 7 March 2003, ‘‘Srebrenica Cases'', case Nos. CH/01/8365 et al., para. 220 (4); see also para. 191.
104 Ibid., paras. 181 and 220(3).
105 Decision on admissibility and merits of 11 January 2001, Palic v. Republika Srpska, Case No. CH/99/ 3196; Decision on admissibility and merits of 9 November 2001, Unkovic v. Federation of Bosnia andHerzegovina, Case No. CH/99/2150.
Volume 88 Number 862 June 2006 International Court of Justice (ICJ), they ‘‘play an increasingly important role inthe recognition of various human rights as custom,'' and the cumulative weight ofthis case law, together with that of the human rights bodies and courts, ‘‘influencesand consolidates the development of customary human rights law.''106 Going back to Meron's indicators of a customary human right, he also notes some countering factors: ‘‘the degree to which a particular right is subject tolimitations (claw back clauses) and the extent of contrary practice.'' With regard tolimitations on the right to the truth, it was mentioned earlier that certain countriesrecognize this type of obligation in the sense of the principle of freedom ofinformation. As is known, the right to freedom of information may be restrictedunder international law where it is necessary to protect the reputation or rights ofothers or to protect national security, public order, public health or morals.107Could similar restrictions pertain to the right to the truth? It has been argued thatthe inalienable character of that right, together with its material scope (relating toserious violations of international humanitarian or human rights law) precludesany derogation from it. This argument is bolstered by the judgments of courts atnational and regional levels that a failure to inform people of the fate andwhereabouts of missing relatives may amount to torture — clearly a jus cogenscrime. One could also argue that the judicial remedies that protect fundamentalrights, such as habeas corpus and amparo, which may also be used as proceduralinstruments to implement the right to the truth, have now come to be understoodas non-derogable.108 Furthermore, in a similar way, the right to the truth has alsobeen inferred by courts to form part of the state's duty to protect and guaranteefundamental human rights.109 If the right to the truth is necessary to vindicateother essential rights, such as the right to life and the right not to be subjected totorture, it is difficult to justify limitations or derogations to its application.
In practice, however, states are not always so keen to tell the truth about serious human rights violations and do seek ways to limit doing so. Thejustification of protecting national security has been commonly used bygovernments in recent years to limit the amount of information accessible to 106 Meron, above note 35, p. 89.
107 See ICCPR, Art. 19(3).
108 See inter alia: Human Rights Committee, General Comment No. 29, States of Emergency; Inter-American Court of Human Rights, Advisory Opinion OC-8/87 of 30 January 1987, and Advisory Opinion OC-9/87of 6 October 1987.
109 European Court on Human Rights (Judgment of 25 May 1998, Kurt v. Turkey, Application No. 24276/ 94; Judgment of 14 November 2000, Tas v. Turkey, Application No. 24396/94; and Judgment of 10 May2001, Cyprus v. Turkey, Application No. 25781/94); Inter-American Court of Human Rights (Judgmentof 29 July 1988, Vela´squez Rodrı´guez case; Judgment of 20 January 1989, Godı´nez Cruz case; Judgment of3 November 1997, Castillo Pa´ez case; Judgment of 24 January 1998, Blake case, para. 97; Judgment of25 November 2000, Bamaca case; Judgment of 25 November 2003, Myrna Mack Chang case; Judgmentof 8 July 2004, Case of the Go´mez-Paquiyauri brothers v. Peru; Judgment of 5 July 2004, Case of 19Merchants v. Colombia; Judgment of 7 September 2004, Case of Tibi v. Ecuador; Judgment MolinaTheissen case (Reparations), Judgment of 15 June 2005, Case of Moiwana Village v. Suriname; Judgmentof 22 November 2004, Case of Carpio-Nicolle v. Guatemala; Judgment of 1 March 2005, Case of Serrano-Cruz sisters v. El Salvador; and Judgment of 15 September 2005, Case of the Massacre of Mapiripan v.
Colombia).
Y. Naqvi – The right to the truth in international law: fact or fiction? the public, even when this information pertains to serious human rightsviolations. Such behaviour has been borne out in the ‘‘extraordinary rendition''cases relating to terrorist suspects. In the Maher Arar case concerning aCanadian citizen abducted from John F. Kennedy airport and taken to Syriawhere he was secretly detained and subjected to torture for 10 months,110 theAmerican Civil Liberties Union (ACLU) filed proceedings under theConstitution and the Torture Victim Protection Act.111 In response, the USasserted immunity and state secret defence. The ACLU also tried to get officialconfirmation of the extraordinary rendition practice through Freedom ofInformation procedures. Pursuant to this, in 2004, the court ordered thegovernment to make the relevant documents available. On the basis of nationalsecurity112 there has thus far been no CIA cooperation with the court's order.
The real potential value can be discerned here of a right to the truth incustomary law, separate from the right to seek information, that any citizencould exercise and that can be easily limited, because if the right to the truth isan inalienable right and is necessary to protect other fundamental human rights,the extent to which governments can invoke ‘‘national security'' or otherjustifications to limit the right is likely to be curtailed.
Another area where we see contrary practice to a possible right to the truth is in the use of amnesties. Where amnesties exclude the possibility ofbringing to trial the perpetrators of serious violations of human rights, one of themost commonly implemented means of finding out the truth is frustrated. Themost recent example is the amnesty passed in Algeria in February 2006, which notonly blocks prosecution of those accused of politically motivated human rightsviolations but also muzzles open debate by criminalizing public discussion aboutthe nation's decade-long conflict.113 In fact, amnesties have been ruled by somebodies to be invalid under international law because they prevent the truth fromcoming out by blocking investigations and preventing those responsible for 110 See Jane Mayer, ‘‘Outsourcing torture: The secret history of America's ‘‘extraordinary rendition'' program'', The New Yorker, 14 February 2005, available at: http://www.newyorker.com/fact/content/?050214fa_fact6 (last visited 4 April 2006).
111 In a decision on 16 February 2006, a US District Court dismissed the complaint of Maher Arar, based on lack of standing to bring a claim under the Torture Victim Protection Act. Citing foreign policy andnational security concerns, the court rejected the plaintiff's Bivens claim for substantive due processviolations owing to his removal and torture in Syria. Although the court also dismissed the plaintiff'sprocedural due process and denial of access to counsel claims based on his detention within the UnitedStates, the court granted the alien leave to re-plead these matters. See Maher Arar v. John Ashcroft andothers, 414 F. Supp. 2d 250; 2006 US Dist. LEXIS 5803, 16 February 2006.
112 See also Khaled El-Masri v. George Tenet, et al., 2006 US Dist. LEXIS 34577, 12 May 2006, in which the plaintiff, a German citizen, claimed to be an innocent victim of the United States' ‘‘extraordinaryrendition'' program and, through three causes of action, sued defendants, including the former Directorof the Central Intelligence Agency (CIA), private corporations and unknown employees of both the CIAand the corporations. The District Court ordered that the government's claim of the state secretsprivilege was valid and granted the motion to dismiss.
113 On 27 February 2006, Algeria's full cabinet, with President Abdelaziz Bouteflika presiding, approved the ‘‘Decree Implementing the Charter for Peace and National Reconciliation''. The amnesty excludes thosewho ‘‘committed, or were accomplices in, or instigators of, acts of collective massacres, rape, or the useof explosives in public places.'' Volume 88 Number 862 June 2006 violations from being identified and prosecuted.114 On the other hand,amnesties tied to obligations to disclose information about violations, suchas in South Africa, not only allow the truth to be told, but are facilitative ofthis process.115 A certain doctrine seems to be emerging in scholarship thatthese types of ‘‘accountable amnesties''116 may be considered valid and can berecognized under international law, which adds leverage to the notion that aright to the truth has a legal value, not merely a moral or narrative one. At thesame time, a general de-legitimization of any amnesties for international crimesin the international community is slowly closing the window on this limitationto truth-seeking.117 Thus, in conclusion to the proposition that the right to the truth is a customary right, it can be argued that although there is no explicit statement of theright in any human rights instrument, save for the Updated Principles onImpunity, there have been repeated inferences of this right in relation to otherfundamental human rights by human rights bodies and courts. Cumulatively, theeffect of these decisions, taken together with the widespread practice of institutingmechanisms to discover the truth in countries where serious crimes have beencommitted, as well as some national legislation and the constant reiteration ofthe importance of knowing the truth by international and national organs,suggests the emergence of something approaching a customary right (thoughwith differing contours). It should also be borne in mind that those rights mostcrucial to the protection of human dignity and of universally accepted values of 114 See Garay Hermonsilla et al. v. Chile, Case 10.843, Report No. 36/96, Inter-Am, CHR, OEA/Ser.L/V/II.95 Doc. 7 rev. at 156 (1997).
115 See The Azanian Peoples Organization (AZAPO) v. The President of the Republic of South Africa and others., Case CCT 17/96, (South Africa), 1996 (hereinafter the AZAPO case ), para. 22.
116 The term ‘‘accountable amnesty'' is borrowed from Professor Ronald C. Slye, ‘‘The Legitimacy of Amnesties Under International Law and General Principles of Anglo-American Law: Is a LegitimateAmnesty Possible?'', Virginia Journal of International Law, Vol. 43, p. 173, at p. 245, to refer to anamnesty that provides some accountability and more than minimal relief to victims. According to Prof.
Slye, such an amnesty, which could be accorded foreign recognition, must be created according todemocratic structures and cannot apply to those most responsible for serious international crimes,among other conditions. See also William W. Burke-White, ‘‘Reframing Impunity: Applying LiberalInternational Law Theory to an Analysis of Amnesty Legislation'', Harvard International Law Journal,Vol. 42, No. 2 (2001), (emphasising the legitimising effect of democratically elected governmentsenacting amnesties); Michael P. Scharf, ‘‘The Amnesty Exception to the Jurisdiction of the InternationalCriminal Court'', Cornell International Law Journal, Vol. 32 (1999), (noting the factors the ICC shouldconsider in deciding whether to recognize an amnesty: whether an offence attaches to a duty toprosecute, whether the armed conflict would have ended without the recourse to amnesty and whetherthe state has instituted a truth mechanism); and John Dugard, ‘‘Dealing with Crimes of a Past Regime: IsAmnesty Still an Option?'', Leiden Journal of International Law, Vol. 12, No. 4 (1999), p. 1001(suggesting that amnesties accorded by a Truth and Reconciliation Commission, such as that in SouthAfrica, after investigation ‘‘may contribute to the achievement of peace and justice in a society intransition more effectively than mandatory prosecution'').
117 See Principle 7 of the Princeton Principles on Universal Jurisdiction, adopted by a group of international law experts in 2001, which proposed that ‘‘Amnesties are generally inconsistent with theobligation on states to provide accountability for serious crimes under international law'', Principle 7,Princeton Principles on Universal Jurisdiction 28 (2001), Princeton University Program in Law andPublic Affairs, Princeton University, Princeton, 2001.
Y. Naqvi – The right to the truth in international law: fact or fiction? humanity require a lesser amount of confirmatory evidence of their customarycharacter.118 The right to the truth as a general principle of law What about a right to the truth as a general principle of law? Juan Me´ndez, oneof the principal legal experts on the right to truth, has characterized the right asone of the ‘‘emerging principles in international law'' in view of the fact that‘‘the precept has not been established as a norm clearly and unquestionablyvalidated in an international treaty.''119 It may be argued that the right to thetruth can be discerned as a principle of law deriving from sources at both theinternational and the national levels. In terms of the former, it may be used as ameans of inferring the existence of broad rules from more specific rules bymeans of inductive reasoning.120 The jurisprudence of the human rights courts,which seem to identify a broader right to truth in their analysis of specificconventional rights, would appear to provide some evidence for this. In thelatter, as a principle derived from sources at the national level, it is able to ‘‘fillgaps'' when treaties and custom do not provide enough guidance. Many generalprinciples borrowed from national systems are based on ‘‘natural justice,'' suchas principles of good faith, estoppel and proportionality. It could be held thatthe right to the truth has similar roots, based as it is on human dignity andfairness. It can also be observed that a real transplantation of domestic lawprinciples to the international level is limited to a number of procedural rules,such as the right to a fair hearing, and procedures to address the denial of justiceor the exhaustion of domestic remedies. The right to the truth is analogous in asense to these procedural rules by being tied to the protection of fundamentalhuman rights and by emerging as an expected response by a state to a violation.
As is known, general principles of law are particularly useful in ‘‘new'' areas ofinternational law, and it is clear that the concept of the right to the truth couldbe instrumental to the complex and emerging field of transitional justice,although it should not only apply in the transitional context.121 More broadly,general principles of law, particularly those reflecting considerations ofhumanity, may reveal certain criteria of public policy.122 In this respect, it iseasy to discern the public policy implications of a right to the truth recognizedat the international level.
118 Meron, above note 35, pp. 35 and 113. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, ICJ Reports 1986, 14 (1986), pp. 98–108.
119 Me´ndez, above note 36, p. 255.
120 Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7th edition, Routledge, London, 1997, p. 48.
121 See Me´ndez, above note 36, at p. 256 (‘‘…these obligations are of universal application and are fed by experiences that have little to do with the transition to democracy'').
122 See Ian Brownlie, Principles of Public International Law, 3rd edition, 1979, p. 29.
Volume 88 Number 862 June 2006 Consequences of a right to the truth: truth and the criminal trial As noted in the introductory comments to this article, revealing the truth hasbecome strategically important to many of the objectives of the internationalcriminal trial. However, certain commentators have cautioned against thisapproach. Professor Koskenniemi, for example, has described how in trialsseeking to deal with international crimes perpetrated in highly political contexts,‘‘[t]he line between justice, history and manipulation tends to become all butinvisible.''123 He argues that the objective of ‘‘‘educating' people of ‘historicaltruths' through law emerges from our contemporary wish to accommodate theRealist insight about the need to take into account of the context, but also fromour rejection of the Realists' conclusion — namely that law cannot be of use here.''In line with Hans Morgenthau's scepticism about the ability of the internationallegal process to deal with large events of international politics because of theinevitable distortion that occurs when political contexts are subject to legalprocess,124 Koskenniemi points out that ‘‘individualization'' of internationalcriminal guilt may provide an alibi to a criminal state system (and abidingpopulation),125 while the very structure of a tribunal designed to try perpetratorsfor such crimes is implicitly grounded in preconceived notions about the(contested) context in which the crimes were committed, making a ‘‘show trial''almost inevitable.126 Other commentators have also warned about the ‘‘moralizingover-simplification'' of international criminal law, which ‘‘runs the risk of fallinginto Manichaean approaches.''127 In her famous book on the Eichmann trial inJerusalem, Hannah Arendt also criticized the trial for introducing historical,political and educational objectives into the proceedings: ‘‘The purpose of the trial is to render justice, and nothing else; even thenoblest ulterior purposes — ‘the making of a record of the Hitler regime…'can only detract from the law's main business: to weigh the charges broughtagainst the accused, to render judgment and to mete out due punishment.''128 123 Martti Koskenniemi, ‘‘Between impunity and show trials'', 6 Max Planck UNYB (2002), p. 34.
124 See the discussion on Morgenthau's argument as enunciated in ‘‘Die internationale Rechtspflege, ihr Wesen und ihre Grenzen'', 1929, pp. 62–72, in Martti Koskenniemi, The Gentle Civilizer of Nations:The Rise and Fall of International Law 1870–1960, Cambridge University Press, Cambridge, 2002,pp. 440–445.
125 Koskenniemi, ‘‘Between impunity and show trials'', p. 32. See also the criticisms of the individualization of responsibility for acts of genocide committed in Rwanda, which may be oversimplifying the situationand distorting the group element in the perpetration of crimes: Jean Marie Kamatali, ‘‘The challenge oflinking international criminal justice and national reconciliation: The case of the ICTR'', Leiden Journalof International Law, Vol. 16, No. 1, March 2003, p. 124.
126 Thus, Koskenniemi points out that in the case of the Milosevic trial in The Hague, ‘‘…because the context is part of the political dispute, the trial of Milosevic can only, from the latter's perspective, bea show trial participation which will mean the admission of Western victory.'' Koskenniemi, ibid.,pp. 17–18.
127 Antoine Garapon, ‘‘Three Challenges for International Criminal Justice'', Journal of International Criminal Justice, Vol. 2, No. 3 (2004), p. 724.
128 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Penguin Books, New York, 1994, p. 253.
Y. Naqvi – The right to the truth in international law: fact or fiction? Because of its overtly didactic purposes, Arendt felt that the Eichmann trial had become a show trial staged by the Israeli Prime Minister, David Ben-Gurion, to support political motives linked to justifying and unifying the state ofIsrael.
Turning to more practical implications for a right to the truth in relation to criminal processes, one of the areas where recognition of such a right mayimpact upon the functioning of trials is the relationship between truth-seekingprocesses and judicial processes.129 In principle, these are supposed to becomplementary, but there are also possibilities for conflict, as was shown in thedecision of the Special Court for Sierra Leone (SCSL) when it rejected theapplication for Samuel Norman to appear at the Truth and ReconciliationCommission (TRC) before his trial at the SCSL, on the basis of a lack ofprocedural safeguards of the accused.130 The implication was that fair trial rights ofthe accused would override the truth-seeking function of the TRC. On appeal,Justice Robertson put forward a compromise solution, allowing Norman to givewritten evidence or to meet with the TRC in private but denying a publichearing.131 In fact, this never happened, but the resolution of the jurisdictionalconflict in favour of the court meant that the potential for a broader investigationof some elements of the conflict in Sierra Leone was lost. One question to consideris whether the decision could have been resolved differently had the ‘‘right to thetruth'' of victims and of Sierra Leonean society been recognized and weighedagainst the rights of the accused.132 Taking into account the fact that truth andreconciliation commissions generally consider facts and evidence of a much widerscope than those merely of concern in a criminal trial, and given the crucialimportance that has been attributed to ascertaining this ‘‘truth'' for reconciliationpurposes and the prevention of future violence, courts faced with similarsituations should perhaps take a more lateral view in their weighing up ofcompeting interests.
The problem of whether the ‘‘use immunity for testimony''133 mechanism can be applied to truth commission procedures also remains unresolved. In otherwords, should witnesses who give testimony before a truth commission be able to 129 For a discussion of this relationship, see William A. Schabas & Shane Darcy, Truth Commissions and Courts: The Tension Between Criminal Justice and the Search for Truth, Kluwer Academic Publishers,Dordrecht, 2004.
130 Decision on the Request of the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman (SCSL-2003-08-PT) [3257-3264], 29 October 2003.
131 Decision on Appeal by the Truth and Reconciliation Commission of Sierra Leone (‘‘TRC'' or ‘‘The Commission'' and Chief Samuel Hinga Norman JP against the Decision of His Lordship, Mr Justice BankoleThompson, delivered on 20 October 2003, to Deny the TRC's Request to Hold a Public Hearing with ChiefHinga Norman JP, (SCSL-2003-08-PT), 28 November 2003.
132 In this regard, it should be noted that Principle 9 of the Updated Principles on Impunity, above note 8, puts forward some guidelines for safeguarding the rights of persons implicated in the course ofinvestigations by truth-seeking mechanisms.
133 Before the Special Court for Sierra Leone, a witness may request that testimony delivered in proceedings before that Court will not be used in a subsequent prosecution of that witness (Rule 90(E) of the SCSLRules of Procedure and Evidence). The Rule is derived from Rule 90(E) of the ICTR Rules of Procedureand Evidence, in accordance with Art. 14(1) of the SCSL Statute.
Volume 88 Number 862 June 2006 request that such information not be used to prosecute them?134 If one takes intoaccount a right to truth owed to society or to victims, the arguments for such aprinciple to be applied to truth commission procedures may well be strengthened.
Another area that merits attention is the use of plea bargaining in trials dealing with international crimes. Despite an initial reluctance to enter into thistype of arrangement, given the nature of the crimes covered by their mandates, thead hoc international criminal tribunals have gradually come to accept the use ofplea bargaining as a means to make international criminal processes moreefficient.135 This began with sentence bargaining but now includes chargebargaining.136 On the one hand, a guilty plea is important for establishing thetruth because it removes the source of conflict over responsibility and evidence,and it provides an incentive to defendants to provide information that mayotherwise remain unknown. The best example of this is the plea agreement ofMomir Nikolic before the ICTY. In his Statement of Facts and Acceptance ofResponsibility attached to the plea agreement, Nikolic stated that the executionsof thousands of Muslim men and boys at Srebrenica were planned and knownabout at the highest levels in the Bosnian Serb Army (VRS), thereby countering thedenials that had been issued regarding responsibility at the individual and statelevel for the massacre.137 However, ‘‘charge bargaining,'' where more seriouscharges are dropped in return for a defendant's guilty plea, also has the potentialto distort the historical record. In this sense, one could well ask whether chargebargaining is compatible with the right to the truth of society and of victims. Inthe case of Plavsˇic´ at the ICTY, the accused also admitted the facts supporting thecharge in a five-page document appended to the plea agreement, which may serveto develop a generally accepted historical record. On the other hand, Plavsˇic´ onlyhad to admit to facts relevant to the remaining charge of persecution so that herinvolvement in any acts of genocide, the original charge, remains unknown. Infact, many Serbs did not see the plea bargain as an act of truth-telling but as aself-interested compromise in return for judicial benefits.138 134 For arguments in this direction, see William A. Schabas, ‘‘A Synergic Relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone'', in William A. Schabas &Shane Darcy, Truth Commissions and Courts: The Tension Between Criminal Justice and the Search forTruth, Kluwer Academic Publishers, Dordrecht, 2004, pp. 30–35.
135 On 12 July 2001, the ICTY added Rule 62ter of the Rules of Procedure and Evidence, which sets forth the procedure for accepting a plea arrangement.
136 Sentencing Judgment, Plavsˇic´ (IT-00-39&40/1-S), Trial Chamber III, 27 February 2003.
137 As Assistant Commander for Security and Intelligence of the Bratunac Brigade of the VRS, Nikolic was ordered to coordinate and supervise ‘‘the transportation of the women and children to Kladanj and theseparation and detention of able-bodied Muslim men,'' which he did. He was asked to help identify sitesfor detention where the men and boys were to be held pending their execution. Nikolic passed thisinformation on to his commander and co-accused, Vidoje Blagojevic, who appeared to be ‘‘fullyinformed of the transportation and killing operation''. He also admits his involvement in exhumation ofmass graves and reburial — and names those who ordered him to do it. In addition, he relates theintentional destruction of compromising evidence by officers of the VRS Drina Corps, as well asmeetings with VRS officers and a visit from the State Security Service to encourage his silence after hewas summoned for questioning by the ICTY.
138 Michael P. Scharf, ‘‘Trading justice for efficiency'', Journal of International Criminal Justice, Vol. 2, No. 4 (2004), pp. 1070–1081, at p. 1080.
Y. Naqvi – The right to the truth in international law: fact or fiction? Indeed, negotiated justice has been justified on the basis of postmodern philosophical thought which, as mentioned earlier, sees the most appropriateconcept of truth as one that defines ‘‘truth'' as that version of facts acceptable to allconcerned.139 A general principle of a ‘‘right to the truth,'' therefore, may helpcourts to attune their use of plea-bargaining and other measures of negotiatedjustice better to the overriding objectives of international criminal justice. It is adelicate balance to achieve: while agreement and compromise may not be the mostreliable path to accurate fact-finding, a defendant may be induced to provideimportant evidence that may otherwise not come to light.140 Finally, the difficult question of whether a truth commission or other non-judicial truth-seeking mechanism should name names of those foundresponsible for serious human rights violations remains a thorny issue. Clearly,there is a clash here between the individual victim's and society's right to truth andthe alleged perpetrator's due process rights, not least the presumption ofinnocence and the right to defend oneself against criminal charges. The practice oftruth commissions has varied on this point.141 The Updated Principles onImpunity provide some guidelines on the matter,142 but debate is likely tocontinue.
The right to the truth is a notion that seems at once idealistic and obvious to thehuman condition. Truth is a concept that is notoriously hard to pin down. Itimplies objective credibility but also requires subjective understanding. It suggestsagreement about factual reality but also space for differing interpretations. It takeson value in the public sphere while remaining an intensely private matter for the 139 Mirjan Damasˇka, ‘‘Negotiated Justice in International Criminal Courts'', Journal of International Criminal Justice, Vol. 2, No. 4 (2004), pp. 1018–1039, at p. 1029.
140 For its part, the ICC Statute allows ‘‘admissions'', which have to follow the strict conditions required for admission statements. They must be supported, inter alia, by materials supplementing the prosecution'scharges as well as any other evidence presented by the parties. A judge can request that the prosecutionpresent additional evidence, including the testimony of witnesses (ICC Statute, Art. 65).
141 Truth commissions in El Salvador and South Africa named alleged perpetrators in their final reports.
The commission in Guatemala was explicitly prohibited from doing so. Argentina's NationalCommission on the Disappeared operated under an ambiguous mandate in this regard, but it did notrelease the names of those who were said to have committed crimes. Although the mandate of Chile'sNational Commission on Truth and Reconciliation did not prohibit the body from naming thosealleged to have committed crimes, the commission nonetheless chose not to do so, citing pragmaticconcerns about stability and due process questions of evidentiary sufficiency.
142 Principle 9 of the ‘‘Updated Principles on Impunity'' provides that: ‘‘[b]efore a commission identifies perpetrators in its report, the individuals concerned shall be entitled to the following guarantees: (a) Thecommission must try to corroborate information implicating individuals before they are namedpublicly; (b) The individuals implicated shall be afforded an opportunity to provide a statement settingforth their version of the facts either at a hearing convened by the commission while conducting itsinvestigation or through submission of a document equivalent to a right of reply for inclusion in thecommission's file.'' Volume 88 Number 862 June 2006 individual, and it is honed on the past but may change our perception of thepresent and teach lessons about what to do with the future.
By way of a tentative conclusion to the question posed in the title of this article, it may be argued that the right to the truth stands somewhere on thethreshold of a legal norm and a narrative device. Its clear link to human dignitymeans that nobody will deny its importance, but lingering doubts about itsnormative content and parameters leave it somewhere above a good argument andsomewhere below a clear legal rule. The truth about the right to the truth is still amatter to be agreed upon.

Source: http://aldeilis.net/truth/001.pdf