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Truth as justice: legal and extralegal development of the right to truth.

The field of transitional justice is rapidly emerging within international human rights law. Organizations such as the New York-based International Center for Transitional Justice (ICTJ), deploy dozens of transitional justice consultants to post-conflict states, and academic Ruti Teitel notes that the international system has lately seen a pervasive normalization of transitional justice in human rights law. An essential component to this spread of transitional justice is the concept of a victim's "right to truth." Though this right to truth has become increasingly visible in international human rights legal discourse, it has not emerged in a traditional, straightforward manner, built upon landmark legal cases and documents. Rather, it has arisen in a diffuse manner in which non-legal academics and activists have served as essential contributors. This extralegal component of the right's development, however, does not undermine its legitimacy as the traditional legal community might expect. In fact, it ultimately bolsters its applicability to local, culturally-specific contexts and promotes a broader definition of transitional justice beyond merely prosecutorial justice to encompass conceptions of victim rehabilitation and societal reconciliation.

Founding Arguments for the Right to Truth

One of the earliest works that explicitly argued for the right to truth is Juan Mendez's 1997 "Accountability for Past Abuses," frequently cited as one of the first arguments to recognize the global emergence of this right. Mendez, President Emiritus of the ICTJ, defined the right to truth as a placement of "obligation [on the state] to disclose to the victims and to society all that can reliably be known about the circumstances of the crime, including the identity of the perpetrators and instigators." In his article, Mendez recognized that the victim's "right to know the truth" was not yet a binding legal obligation, but he nonetheless predicted that the international legal community would increasingly recognize this right, as it was founded in "norms of universal applicability." As a primary example of the growing recognition of the right to truth in the global community, Mendez observed that the eighth annual report presented by Special Rapporteur Leonardo Despouy before the 1995 UN Economic and Social Council indicated that "the right to know the truth has achieved the status of a customary international law norm."

Similarly, other advocates for the right to truth have interpreted various "right to information" clauses in international documents as providing a foundation for the right to truth. Priscilla Hayner, the author of Unspeakable Truths (2000), cites a former researcher and writer for Human Rights Watch/Africa who argues that the right to truth is contained within the right to "seek, receive, and impart information" guaranteed by Article 19 of the Universal Declaration of Human Rights. Further, the "right to receive information" in the African Charter on Human and Peoples' Rights guarantees a similar foundational right.

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Formal Institutional Recognition

Since the publication of his 1997 article, Mendez has drawn upon cases heard by various regional courts and commissions to establish an expanded and more rigorous legal foundation of the right to truth. In particular, the Chilean experience with the transition from dictator Augusto Pinochet to President Patricio Aylwin illustrates the conception and spread of the right in international human rights law. Pinochet's 1968 self-amnesty law precluded criminal investigations or trials of human rights violators and military leaders under his regime. Without the option of criminal prosecution, Aylwin's administration focused on the truth-telling component of transitional justice by establishing the Chilean Truth and Reconciliation Commission, headed by Jorge Rettig. Mendez asserts that the individual hearings and the Commission's detailed reports on each case brought to its attention helped establish the norm that "the state owes each victim not only a general truth about the patterns and practices of repression but also an individualized truth about what happened to each and every victim." The experience of various Latin American truth commissions, such as Chile's Rettig Commission, established a precedent of truth-seeking as a rehabilitative measure for victims and as a societal reconciliatory strategy.

In addition to the Rettig Commission, the 1988 Velasquez Rodriguez decision by the Inter-American Court of Human Rights (IACtHR) serves as a landmark case in the development of the right to truth. The first international court to confront the phenomenon of forced disappearances, the IACtHR ruled in favor of Angel Manfredo Velasquez Rodriguez, a Honduran student leader who was apprehended by the national army and subsequently disappeared. The ruling asserted the victim's right to know even in the absence of criminal sanctions: "Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and as may be the case, the location of their remains."

This ruling obliges the state to provide victims' families with the truth about the circumstances surrounding the crime and establishes this investigative responsibility as distinct from other prosecutorial measures the state might pursue. The independent nature of the state's obligation to provide the truth implies that the truth is an integral component to the provision of justice in its own right, rather than a lesser or supplementary component to trials and other prosecutorial measures.

These two Latin American cases were followed by other regional and international legal bodies that affirmed the validity of victims' right to truth. The Inter-American Commission on Human Rights, the European Court of Human Rights (ECtHR), and two Special Rapporteurs reports to the UN serve as principal evidence for more globalized adoption of this right. Influenced by the IACtHR's ruling on Velasquez Rodriguez, the Inter-American Commission, the region's other human rights protection body, established that the state's "obligation to investigate, prosecute, and punish is also a right of the victim and his or her families." European human rights courts also followed suit: in the December 1996 Aksoy v. Turkey, the ECtHR ruled against the state, reasoning that beyond monetary reparations, "victims and their families have a right to serious investigation, prosecution and punishment of those found to be responsible for such crimes."

Finally, the right to truth was asserted before the UN by Special Rapporteurs Theo Van Boven and Louis Joinet. According to Mendez, both Van Boven's report on reparations and Joinet's report on impunity broadly conclude the right of victims "to demand prosecution for crimes against humanity." Joinet's 1997 report prepared for the UN Economic and Social Council more explicitly addressed the issue of truth by highlighting the "right to know" as one of victims' three legal rights, according to Paige Arthur in a 2009 Human Rights Quarterly article. From implicit discussion of the right to truth as a widely applicable "norm" to its formal, albeit nonbinding, recognition by regional Inter-American and European courts, international institutions gradually embraced the right to truth throughout the 1990s.

Academic and Practitioner Contributions

These milestones in the legal foundation of the right to truth, although commendable, provide insufficient evidence alone to form a compelling argument for its validity in international human rights discourse. Indeed, the legal aspects of the development of the right to truth must be supplemented with its extralegal, multidisciplinary components, as illustrated by the 1993 Catholic Institute for International Relations (CIIR) Conference. Ian Linden, General Secretary of the CIIR, reports that the Conference brought together representatives of human-rights groups, church-based groups, solidarity organizations, refugees' representative organizations, and development agencies of countries ranging from Ethiopia, Guatemala, South Korea, Namibia, and South Africa to various European nations. Participants examined the right to truth from various angles, including the political implications of amnesty, the cultural and psychological dimensions of post-conflict recovery at both personal and social levels, the role of journalists and the media, and the potential for NGOs to pressure governments to disclose information. Guatemalan lawyer Frank La Rue, in particular, asserted the value of investigation as part of a reparation process and, in conjunction with Argentine lawyer Rodolfo Mattarrollo, further argued that "Truth Commissions had been an important element in creating a sense of the right to truth, and that progress had been made in the degree of disclosure which the Commissions were able to achieve."

Not only practitioners but also academics contributed to the production of transnational norms regarding victims' right to truth. The 1988 Aspen Institute Conference on "State Crimes: Punishment or Pardon" highlights the role of academia in promoting the right to truth in international legal discourse. Arthur cites this Conference as the "first of a cluster of meetings that helped to clarify and solidify a conceptual framework for an emerging field [of transitional justice]." Alice Henkin, Director of the Justice and Society Program at the Aspen Institute, served as the primary coordinator of the three-day Conference and emphasized the unanimous consensus with which its participants advocated the validity of the right to truth. The 24 philosophers, political scientists, and legal scholars from the United States, South Korea, Uganda, and various Latin American nations agreed that there existed a minimum obligation on post-conflict states to establish the truth about government-perpetrated crimes of the past. Henkin reports: "The successor government has an obligation to investigate and establish the facts so that the truth be known and be made part of the nation's history. Even in situations where pardon or clemency might be appropriate there should be no compromising of the obligation to discover and acknowledge the truth."

The Aspen participants further reached a consensus on the degree of the state's truth-telling obligation, including the public naming of perpetrators: "The identity of the planners and of the perpetrators must be made known. There must be both knowledge and acknowledgement: the events need to be officially recognized and publicly revealed. " By adopting such an open, public definition of truth-telling, the Conference participants established the post-conflict government obligation to respond to victims' "demand for justice" by disclosing and acknowledging the truth and, in the process, facilitating national reconciliation. In this respect, the 1988 Conference establishes truth-telling as a mechanism that can promote justice. Finally, the enduring importance of the right to truth was demonstrated by the fact that the Aspen participants recommended the following as the primary agenda item for future human rights organizations: "Groups should increase and refine their truth-telling efforts, especially in those places where there has been inadequate attention paid to abuses."

The Aspen participants' consensus on the crucial nature of the right to truth provides a clearer understanding of the mechanism by which the aforementioned Chilean post-conflict experience has had a transnational impact on the normalization of the right to truth. Arthur observes that the 1988 Conference, and the field of transitional justice in general, is inherently international in that its "knowledge base has always been comparative." This comparative nature highlights the role that a variety of nations and cultures have played in its development. The fact that the intellectual framework for the right to truth emerged in a setting where academics and practitioners from all over the world discussed and drew connections among their varied experiences with post-conflict transitions highlights the bottom-up nature of the foundation of the right to truth. Lawrence Weschler of The New Yorker commented after observing the discussions of the multi-background Aspen participants: "Over and over again, the same sorts of issues get played out, and over and over again, as the participants at The Aspen Institute Conference began to realize, the same two imperatives seem to rise to the fore--the intertwined demands for justice and for truth."

As evident in the diversity represented at the Conference, the concept of the right to truth did not emerge in an acultural, non-contextual framework to be imposed on individual post-conflict societies, but rather evolved in an opposite, more organic direction. Domestic experiences with the right to truth were shared at conferences such as CIIR and Aspen. At these forums that both facilitated the sharing of domestic experiences with truth-telling processes and recognized the transferability of these individual experiences to different contexts, the right to truth began its normalization process. This process, in turn, provided the foundation for the formal legal landmarks that further legitimized the right.

In addition to creating its intellectual foundation, extra legal factors also bolstered the right to truth by normalizing the right in mainstream international discourse. Academics like Martha Finnemore and Kathryn Sikkink stress the importance of norms and norm-building in international affairs. "Norm entrepreneurs" first promote individual norms, and if they are successful, states, international organizations, and networks adopt the norms, legitimizing them in the process. The final indicator of the complete entrenchment of these norms is the institutionalization of the ideas by the law and by bureaucracies.

We can apply Finnemore and Sikkink's normalization framework on the emergence of the right to truth, marking the contribution of extralegal entities like NGOs and academics in the entrenchment of this right in transitional justice discourse. In "Transitional Justice Genealogy" (2003), Teitel identifies three phases in the genealogy of transitional justice. The post-World War II period with the Nuremberg Trials represents the first phase; the new post-Cold War global context exemplified by truth-seeking and investigatory institutions, such as South Africa and Argentina's Truth Commissions established in the early 1990s, comprise the second phase. This second phase, characterized by the proliferation of truth commissions, interestingly corresponds in time to Velasquez Rodriguez and the CIIR and Aspen Conferences. Teitel further describes: "Whereas in the first phase justice was chiefly the purview of the successor regime and courts of law, in the second phase many of the relevant actors and institutions lay outside law and politics, and included churches, NGOs, and human rights groups." NGOs and the international human rights network, indeed, have come to wield increasing levels of influence over formal legal institutions. The infiltration of the transnational human rights advocacy network into traditional judicial and legal mechanisms not only characterize the emergence of the right to truth but also the more general development of the field of transitional justice.

The second phase of transitional justice has expanded and become normalized in contemporary society. According to Teitel, the third and current phase of transitional justice has seen the "deployment of the humanitarian regime, which has expanded and merged with the law of human rights." In this context, the genealogy of the right to truth, with both its legal and extralegal components, is consistent with the genealogy of the greater field of transitional justice. The growing, intertwined relationship between traditional legal institutions and the transnational human rights network demonstrates the important contribution of extralegal factors in the normalization and eventual establishment of new legal rights, including the right to truth.

Universal Law and Local Culture: Closing the Gap

The multidisciplinary foundation of the right to truth does not diminish its legitimacy but rather bolsters its applicability to varied, culturally diverse post-conflict situations. One of the most enduring discussions in the field of international human rights remains the debate between universalism and relativism. This seemingly irreconcilable relationship between universal rights on the one hand and sensitivity to culture and local customs on the other is well illustrated by anthropologist Sally Engle Merry in her 2006 book Human Rights and Gender Violence. Merry acknowledges the significant strides that the international human rights movement has made in recent decades but still pinpoints the tension between global and local human rights activism as an aspect of human rights advocacy that must be resolved: "Law's power to shape society depends ... on becoming embedded in everyday social practices, shaping the rules people carry in their heads ... Yet, there is a great distance between the global sites where these ideas are formulated and the specific situations in which they are deployed." As global human rights reformers are rooted in a legal culture that is remote from local societies, they often neglect the particular histories and contexts of the victims they seek to empower. This disconnect is one of the most debilitating weaknesses of the international human rights movements, as any universal law must be situated within local contexts in order to be effective.

In the context of Merry's criticism, the very nature of how the right to truth has emerged likely offers a way to minimize the tension between universalism and relativism. As exemplified by the CIIS and Aspen conferences, the right to truth emerged from the post-conflict, transitional experiences of diverse cultural societies, ranging from various Latin American nations to South Korea and Uganda. In contrast to other legal rights that originate from formal legal precedents and binding documents, the right to truth was largely constituted by extralegal, norm-setting channels such as the Aspen Conference. Only after this recognition from academics and human rights practitioners did legal institutions such as the Inter-American Commission on Human Rights and the European Court of Human Rights recognize the right to truth for victims.

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This unique genealogy of the right to truth enables it to potentially bridge the gap between international law and local contexts; from its inception, the right to truth was based in different cultures, conceived as a response to ordinary victims' unprecedented need to know in various post-conflict societies across numerous continents. The right to truth thus maintains flexibility in adapting to different cultures while simultaneously highlighting a universal need among different experiences, a dual quality rare in international law. Indeed, the monitoring, reporting, and discussing of the right to truth in one domestic setting--Chile or Argentina, for instance--can serve as precedent and norm for other states undergoing political and social transition. Recognizing the right's rich foundation of academic, practitioner, and institutional insight, post-conflict states should honor the right to truth in order to achieve rehabilitative justice for victims and reconciliation for all citizens involved.

editor-in-chief

Y. GLORIA PARK
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Title Annotation:WORLD IN REVIEW
Author:Park, Y. Gloria
Publication:Harvard International Review
Geographic Code:1U1MA
Date:Jan 1, 2010
Words:2936
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