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Oxford Law Citator

Part II The Right to Know, A General Principles, Principle 2 The Inalienable Right to the Truth

Dermot Groome

From: The United Nations Principles to Combat Impunity: A Commentary

Edited By: Frank Haldemann, Thomas Unger

Content type:: Book content

Product:: Oxford Scholarly Authorities on International Law [OSAIL]

Series:: Oxford Commentaries on International Law

Published in print:: 22 March 2018

ISBN:: 9780198743606

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Subject(s):: Right to truth

(p. 59) Principle 2. The Inalienable Right to the Truth

Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.

A. Summary of Findings

The right to the truth continues to evolve as a human right with both an individual and collective dimension. It arises from the right to know, and obliges governments to establish mechanisms to facilitate the revelation of the truth about serious violations of human rights.¹ The right has been explicitly incorporated into several international instruments and, in 2010, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) became the first treaty to expressly guarantee the right to the truth.

In practice, the right is realized through laws enabling requests for state-held information; archives; truth commissions; national and international courts; and human rights commissions. At this juncture, while the precise contours of the right to truth are still being delineated, it has achieved customary status to the extent that individuals have the right to know the truth about grave violations of human rights affecting them.

As the right to truth continues to evolve, care must be taken to avoid over-broad definitions that ultimately undermine its effectiveness. Its nascent foundations are not sufficiently established and its contours not sufficiently clear to support these aspirationally expansive interpretations. More time is needed for the right, in both its individual and collective dimensions, to develop more precise contours that are more universally accepted.

B. Contextual and Historical Introduction

1 The right to the truth evolved from the right to know articulated in Article 32 of Additional Protocol I to the Geneva Conventions. The right to know obliges Contracting Parties to fulfil their obligations toward the missing and dead, ‘prompted mainly by the right of families to know the fate of their relatives’.² Although Article 32’s right to know contemplated the specific context of armed conflict, it did not take long before its applicability outside of international humanitarian law came to be considered.³

Page Id: 59References(p. 60) 2 In the 1970s, the UN General Assembly adopted a series of resolutions critical of the repressive regime in Chile engaged in the enforced disappearance of dissidents.⁴ Enforced disappearances by other South American⁵ regimes during this period also raised public and international awareness about the impact that these disappearances had on the families of victims.⁶

3 In 1992, the General Assembly’s Declaration on the Protection of All Persons from Enforced Disappearance called on states to ensure that persons alleging that a relative had been abducted had the right to have that disappearance investigated.⁷ In 1997, Louis Joinet, in his Principles to Combat Impunity, defined the right to truth more broadly as one held not only by victims’ families but also by society in general. The first of the Joinet Principles, ‘The Inalienable Right to the Truth’, defined the right broadly to include both an individual and a collective dimension.⁸

4 When Diane Orentlicher updated Joinet’s Principles in 2005, she inserted a new first Principle, articulating the general obligations of states to combat impunity; this new Principle includes an explicit reference to the right to the truth.⁹ Orentlicher pointed out that while the right to the truth had been ‘strongly affirmed’ in international law and state practice, ‘the contours of this right ha[d] been delineated somewhat differently by various treaty bodies’.¹⁰

5 Despite variations in definitional ‘contour’, there is an increasing expectation by the international community that the right to the truth will be a remedial measure used to address allegations of serious human rights abuses. In the same month the revised Principles were published, the then High Commissioner of Human Rights, Louise Arbour, noted with criticism that the negotiations between the Government of Columbia and paramilitary groups ‘took place in the absence of a parallel appropriate legal framework that would have guaranteed the right to truth’.¹¹ Later that year, the High Commissioner prepared (p. 61) a comprehensive report on the right.¹² Shortly after the report’s publication, the General Assembly passed a resolution on the right to remedies for victims of gross violations of human rights, promulgating principles which included the right to the truth.¹³ The Organization of American States (OAS) also adopted a resolution that ‘recognize[d] the importance of respecting and ensuring the right to the truth’.¹⁴

6 In September 2009, the Human Rights Council adopted a resolution on the right to truth, ‘recogniz[ing] the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights’.¹⁵ In 2011, the UN Secretary-General (UNSG) declared 24 March ‘Right to Truth Day’, to annually commemorate ‘the indispensable role of the truth in upholding human rights’.¹⁶ Later that year, the Human Rights Council appointed a new Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence.¹⁷ In December 2013, the General Assembly adopted Resolution 68/165 on the Right to the Truth, which encouraged states to ensure that national archival policies facilitated the right and invited the special procedures and other mechanisms of the HRC ‘to take into account … the right to the truth’.¹⁸

C. Theoretical Framework

7 The evolution of the right to the truth from a humanitarian principle to customary norm is intertwined not only with the right to know, but also with rights related to the access to justice and information, the equal protection of law, and the right to family life. It emanates from essential elements of these rights and operates as a ‘meta’ right, creating a broadly defined obligation for states to provide effective mechanisms for establishing the truth of serious human rights violations.¹⁹ It has also been conceptualized as part of a state’s duty to make reparation for violations of its international obligations.²⁰

8 Any emerging principle of customary international law inherently presents definitional difficulties. Absent a deliberate codification process, its definition evolves within a process of emergence and refinement that is evidenced in the practice of states and reliable (p. 62) indicia of their acceptance of it as a legal obligation (opinio juris).²¹ Articulating the precise contours of an emerging customary legal principle can be a prolonged process in which specific lineaments are identified over time, each contributing to a clearer understanding of the right.

9 Early jurisprudence from the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) offers a useful example of this process. When the UN Security Council adopted the ICTY and ICTR statutes in 1993 and 1994 respectively, many of the crimes within the jurisdiction of the ad hoc tribunals had already been committed. The principle of legality required judicial determinations that these crimes already existed in customary law.²² These courts became ‘customary midwives’ for many of the criminal prohibitions found in international law today.²³

10 The definition of ‘rape’ is one such example. Today, the definition articulated by the Kunarac Chamber is broadly accepted as the complete and precise definition of ‘rape’ found in customary international law. In short, ‘rape’ is defined as any sexual penetration of the vagina, anus or mouth of the victim without the victim’s consent.²⁴ The precise contours of this definition, however, developed over a series of cases as the facts of individual cases occasioned increasingly precise analysis.²⁵

11 In 1989, Theodor Meron recognized that state practice and opinio juris, the sources of international law contemplated by Article 38 of the ICJ Statute were not ‘comprehensive and immutable’, and that ‘[i]t may well be that these sources will be expanded by, for example, attributing a more direct law-creating role to normative resolutions of the General Assembly’.²⁶ Meron also considered that another method of ‘building customary law’ was through the ‘general principles of law recognized by civilized nations’ referred to in Article 38(1)(c) of the ICJ Statute, a method of particular importance for rights associated with ‘the administration of justice and due process’.²⁷ As Richard Lillich has asserted, the evaluation of the customary status of a human right ‘looks not only to traditional but also to new sources of state practice and new expressions of opinio juris to determine and Page Id: 62References(p. 63) develop the content and contours of the emerging customary international law of human rights’.²⁸ This is, in part, a response to the fact that ‘state practice and judicial opinions have been slow to recognize or give legal effect to assertions of such norms’.²⁹

12 While the definition of the right to truth is undoubtedly still developing, consideration of relevant, opinio juris state practice, other normative indicators such as General Assembly resolutions, and general principles of law makes clear that the core of the right to the truth is a matter of customary international law. Despite variances in the way the right has been expressed and applied, there is a common ‘core’ of the right that has achieved customary status.³⁰

13 The right to the truth emerges from the right to know first articulated in Article 32 of Additional Protocol I to the Geneva Conventions.³¹ The customary status of the right to know is settled, and its definition is articulated as follows:

Each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate.³²

By virtue of its derivative nature, the right to the truth incorporates this customary core as part of its definition.

14 In 2010, the ICPPED came into effect. The text of the Convention was adopted by the General Assembly in 2006 and became available for signatures on 6 February 2007. Article 24(2) states:

Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.

As of October 2016, ninety-six states have signed the Convention and fifty-three have ratified or acceded to it.³³ This inaugural reference in a widely ratified convention marks an important step in its germination into a customary norm.

Page Id: 63References(p. 64) 15 Prior to the ICPPED, the right to the truth was the subject of numerous regular references in international and regional instruments with varying degrees of normative significance.³⁴ Several countries, in replying to a note verbale of the OHCHR, took the view that the right was normative in nature.³⁵ The right to the truth has also been found to be implicit in several rights protected in the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ Rights (ACHPR).³⁶ As described in section D of this commentary, families of victims have been successful in asserting the right and obtaining tangible relief before commissions and courts with jurisdiction over these conventions, although that relief has been underpinned with rights found explicitly in the conventions. In several cases before the Inter-American Court of Human Rights (IACtHR), state respondents have acknowledged the right to truth and their violation of it. Although the Court declined to accept these acknowledgements as being determinative of whether the right was a conceptually autonomous right, the acknowledgements do indicate that these countries understand the right to the truth as having normative status.³⁷

16 The proliferation of truth commissions demonstrates the near-universal value placed on uncovering and documenting the truth about serious violations of human rights. Not irrelevant to any normative analysis are the many national laws that ensure citizens of their right to access information held by their governments.³⁸ While these laws serve to promote transparency in government, they evidence the same core value and have been employed to uncover human rights abuses.³⁹

Page Id: 64References(p. 65) 17 As described in section D of this commentary, the IACtHR has considered the question of whether the right belongs to individuals with a close relationship to the victim, or whether it is also a collective right. While the Court has recognized the importance of the collective dimension, it has stopped short of explicitly recognizing it in a way that would enable those without a sufficiently close relationship to the victim to assert it.⁴⁰ The Court has characterized this dimension as an obligation of states rather than a collective right. It is a ‘fair expectation’ of a democratic society that is served by the relief ordered in cases brought by individuals.⁴¹

18 Despite variances in the way the right has been expressed and applied, there is a common ‘core’ of the right that has achieved customary status.⁴² The right to truth as a principle of customary international law is best described as: the right of victims and society to know the truth about serious violations of international criminal and human rights law; and the right of victims and those close to victims to require states to affirmatively investigate such violations, as well as to establish judicial and extra-judicial mechanisms capable of ensuring that the complete truth about these violations is revealed.

19 As the right develops and is asserted in different contexts, we can expect to see its core normative definition more broadly articulated and its perimeter more clearly demarcated. It is important to recognize that there will never be perfect parity between the collective and individual interests at stake. For example, in the context of war crimes, victims’ families are most often focused on the direct perpetrators of the crime, while the collective’s interest may be on those senior officials most responsible for state-sanctioned violations.⁴³

D. Practice

20 The right to the truth has been realized through an array of mechanisms, including: archives, truth and fact-finding commissions, regional human rights conventions, domestic and international courts.⁴⁴

21 There have been several ad hoc international fact-finding missions whose mandates have contributed to the realization of both the individual and collective dimensions of the right.⁴⁵ State-sanctioned truth commissions have also played an important role in giving practical effect to the right. Overall, the more than forty truth commissions to date have had mixed success, with some dismissed as ineffective and others credited with having made important contributions in the transition from authoritarian rule to democracy.⁴⁶ Page Id: 65References(p. 66) Truth commissions have become a regular response to dealing with serious human rights violations in transitional and post-conflict settings, and while they facilitate a common understanding of events, they alone cannot secure justice for victims.⁴⁷

22 The mandate entrusted to truth commissions of the past 30 years has expanded significantly. While early commissions focused on the enforced disappearance of specific individuals,⁴⁸ newer commissions have been given ever more expansive mandates, which include violations of economic and cultural rights.⁴⁹ Fulfilling these broad expectations has proved to be challenging.⁵⁰

23 The Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence devoted his 2013 report to the challenges faced by truth commissions. While the Special Rapporteur was careful not to diminish the positive aspects of this expansion, he pointed out that overly ambitious mandates may compromise a commission’s ability to complete realistically achievable goals. He cautioned against the significant and ‘open-ended’ expansion of mandates.⁵¹

24 In addition to state-sanctioned truth commissions, there have been several notable examples of non-state commissions, such as the The Recovery of Historical Memory Project sponsored by the Archdiocese of Guatemala and the commission in Greensboro, North Carolina, established to investigate the deaths of demonstrators against the Klu Klux Klan.⁵²

I. Human rights instruments

25 Although the right to truth is not explicitly mentioned in the ICCPR or any of the regional human rights conventions, it has been found to be implicitly embodied in some of the rights guaranteed in these instruments. Under these conventions, the right to the truth operates as a ‘meta’ right that encompasses those constituent rights that empower next of kin to learn the truth about a family member’s fate. The IACtHR has found the right implicit in the ACHR.⁵³ Similarly, the ECtHR and the Human Rights Chamber Page Id: 66References(p. 67) of Bosnia and Herzegovina (HRCBiH) have found that the right is embodied in four categories of protections of the ECHR: prohibition of inhuman treatment; access to justice; equal protection of the laws; and right to family life.⁵⁴

26 Courts have found that a state’s failure to disclose the fate of a person in the custody of the state constitutes inhuman treatment with respect to family members. The families of such a person have a right to the truth with respect to the fate of a loved one, and a state’s infringement of this right is a violation of the prohibition against inhuman treatment.⁵⁵

27 The ICCPR and regional conventions all protect a person’s right of access to justice. Commissions and courts have consistently held that denying a family’s right to the truth by failing to adequately investigate and prosecute crimes committed against a loved one Page Id: 67References(p. 68) is a violation of the right to access justice.⁵⁶ The IACtHR has noted that the obligation to meaningfully investigate gross violations is not discharged by a truth commission, however thorough its work may be,⁵⁷or by military tribunals.⁵⁸ Amnesty laws have also been found to improperly infringe on the right to access justice by denying a family’s right to truth.⁵⁹

28 Similarly, in cases where a family’s efforts to learn the fate of a relative through national legal proceedings are inappropriately thwarted by the government, the Human Rights Committee has found a violation of the guarantee under the ICCPR that all persons are equal under the law.⁶⁰

29 The right to the truth has also been found to encompass rights that protect privacy and family life. Although the ECtHR has found it unnecessary to consider the relationship between the right to the truth and the protection of private and family life under Article 8 of the ECHR,⁶¹ the HRCBiH has held that Article 8 does give families the right to seek information about missing family members.⁶² The African Commission on Human and Peoples Rights found similarly that the protection of the family guaranteed by Article 18 of the ACHPR included the family’s right to know what had happened to a relative.⁶³

30 As described in this section, although regional human rights commissions have asserted the right to the truth as collective right, regional courts have yet to recognize this dimension as right that is enforceable by others who do not have a sufficiently close relationship to the victim.⁶⁴ The IACtHR in Los Dos Erres noted the importance of this collective Page Id: 68References(p. 69) dimension, but suggested that it was already served by the remedies ordered on behalf of the individual claimants.⁶⁵

II. Ad hoc tribunals

31 Early in its work, the ICTY appreciated its important role in establishing the truth based upon credible and reliable evidence.⁶⁶ Although the inquiry undertaken in an international criminal trial is bounded by the crimes charged in the indictment, the trial will adjudicate the material facts of a case to a high standard of proof.

32 During the course of trials at the ICTY and the ICTR, the sworn testimonies of victims, co-perpetrators, international interlocutors, and defendants have been recorded. In some cases, defendants have pleaded guilty, expressing remorse for the crimes they committed. The tribunals have gathered and preserved large volumes of documentary evidence. Exhumation work has also helped identify and return the mortal remains of thousands of victims.⁶⁷

III. International Criminal Court

33 The International Criminal Court (ICC), in implementing its model of restorative justice, has formally granted victims the right to participate fully in proceedings. This right of participation is a fundamental shift from the ICTY and ICTR approach, in which the prosecutor represents the victims’ interests. Although the precise form victim participation should take is still evolving, it is an important mechanism for realization of the right to truth.⁶⁸

IV. Archives

34 One final important mechanism for the realization of the right to the truth is the creation and maintenance of accessible archives. National archives, as well as those of truth commissions and international courts, preserve materials that ensure that evidence is available for future study. Principles 14 to 18 deal specifically with the issue of archives.

Page Id: 69References(p. 70) E. Critical Assessment

35 The development of the right to truth over the past several decades has been marked by different efforts to formulate a legal definition capable of advancing the universally recognized value of accessing the truth about grave violations of human rights. While these efforts have contributed to the normative status of the right, they have been organic and have resulted in a lack of precision. Further complicating the matter is the often interchangeable use of the terms ‘right to know’, ‘right to the truth’, and ‘right to know the truth’, causing confusion with the related but different right—the right to know.⁶⁹

36 Further development of the right to the truth would benefit from more rigorous attention being paid to its definitional contours, and the use of precise terminology that distinguishes it from the right to know and freedom of information laws. A consistent articulation and assertion of the right in a way that is precise and not overbroad will contribute to the great strength and potential it possesses to combat impunity.

Bibliography

Bissett, A, Truth Commissions and Criminal Courts (CUP 2012).
Crettol, M, ‘The Missing and Transitional Justice: The Right to Know and the Fight against Impunity’ (2006) 88(862) International Review of the Red Cross 355–62.
de Greiff, P, Report of the Special Rapporteur on the Promotion of Truth Justice, Reparation and Guarantees of Non-recurrence, UN Doc A/HRC/24/42 (28 August 2013).
Freeman, M, Truth Commissions and Procedural Fairness (CUP 2006).
Groome, D, ‘Right to Truth in the Fight Against Impunity’ (2011) 29 Berkeley Journal of International Law 175–99.
Hayner, P, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (Routledge 2011).
Inter-American Commission on Human Rights, ‘The Right to Truth in the Americas’, OEA/Ser.L/V/II.152 (2014).
Méndez, J, ‘The Right to Truth’ in C Joyner (ed), Reining in Impunity for International Crimes and Serious Violations of Fundamental Rights (Association Internationale De Droit Pénal, 1998) [255]–[278].
Naftali, P, ‘Crafting a “Right to Truth” in International Law: Converging Mobilizations, Diverging Agendas’, Champ Pénal vol XIII (2016) 1–20 <journals.openedition.org/champpenal/9245> accessed 12 December 2017.
Naqvi, Y, ‘The Right to the Truth in International Law: Fact or Fiction’ (2006) 88(862) International Review of the Red Cross 245–73.

Footnotes:

¹ See the commentary to Principle 4 in this volume.

² Art 32, Additional Protocol I, Geneva Conventions (1977).

³ Y Sandoz, ‘Commentary to Article 32’ in Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross 1987) para 1212.

⁴ Cf Protection of Human Rights in Chile, UN Doc A/29/3219 (6 November 1974) (no mention of families of the disappeared) with Protection of Human Rights in Chile, UN Doc A/30/3448 (9 December 1975) and Human Rights in Chile, UN Doc A/34/179 (17 December 1979) (‘Urges the Chilean authorities to investigate and clarify the fate of persons reported to have disappeared for political reasons, to inform relatives of the outcome …’).

⁵ Brazil, Columbia, Guatemala, Paraguay, Peru, and Venezuela.

⁶ On 29 February 1980, the Sub-Commission on Prevention of Discrimination and Protection of Minorities (renamed the Sub-Commission on the Promotion and Protection of Human Rights in 1999) established the Working Group on Disappearances with a universal mandate, a mandate renewed by the Human Rights Council in 2014. See, The Commission on Human Rights Resolution (Res) 20 (XXXVI) Question of Missing and Disappeared Persons (29 February 1980) and Enforced or Involuntary Disappearances, A/HRC/RES/27/1 (1 October 2014).

⁷ Declaration on the Protection of All Persons from Enforced Disappearance, UN Doc A/RES/47/133 (18 December 1992).

⁸ See L Joinet, Special Rapporteur, Revised Final Report on Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), UN Doc E/CN.4/Sub.2/1997/20/Rev.1 (2 October 1997).

⁹ See D Orentlicher, Promotion and Protection of Human Rights, Impunity: Report of the independent expert to update the Set of Principles to Combat Impunity, UN Doc E/CN.4/2005/102 (18 February 2005) (hereinafter ‘Report of the independent expert’). She also made some minor textual changes to Joinet’s Principle 1, the right to the truth, now Principle 2.

¹⁰ Report of the independent expert, n 9, para 17.

¹¹ Report of the High Commissioner for Human Rights on the Situation of Human Rights in Columbia, UN Doc E/CN.4/2005/10 (28 February 2005) para 5. See also Commission on Human Rights, Summary Record of the 48th Meeting, UN Doc E/CN.4/2005/SR.48 (21 April 2005) para 21. On 24 November 2016, the Government of Columbia and the FARC leadership signed a final agreement (Acuerdo final para la terminación del conflicto y la construcción de una paz estable y duradera) that included a reference to the fundamental right to the truth. Full text available from Oficina Del Alto Comisionado Para la Paz (Office of the High Commissioner for Peace), http://www.altocomisionadoparalapaz.gov.co/procesos-y-conversaciones/Documentos%20compartidos/24-11-2016NuevoAcuerdoFinal.pdf accessed 12 December 2017, [2].

¹² Study on the right to the truth, UN Doc E/CN.4/2006/91 (8 February 2006).

¹³ 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, A/RES/60/147 (21 March 2006) para 18 and para 22(b) and (c).

¹⁴ OAS, Right to the Truth, AG/RES. 2175 (XXXVI-O/06) (6 June 2006).

¹⁵ HRC, Right to the Truth, UN Doc A/HRC/12/L.27 (25 September 2009).

¹⁶ UNSG, Statement on Inauguration of ‘Right to Truth Day’, UN Doc SG/SM/13465, 22 March 2011.

¹⁷ HRC, Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, UN Doc A/HRC/RES/18/7 (13 October 2011).

¹⁸ GA, Right to the Truth, UN Doc A/RES/68/165 (18 December 2013).

¹⁹ Pablo de Greiff, the Special Rapporteur on the Promotion of Truth, Justice Reparation and Guarantees of Non-recurrence, recently articulated the right’s essential core: ‘[T]he right to truth should be understood to require States to establish institutions, mechanisms and procedures that are enabled to lead to the revelation of the truth, which is seen as a process to seek information and facts about what has actually taken place’. See P de Greiff, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, UN Doc A/HRC/24/42 (28 August 2013) (hereinafter ‘de Greiff Report’) para 20. at26.

²⁰ Inter-American Commission on Human Rights, ‘The Right to Truth in the Americas’ OEA/Ser.L/V/II.152 (2014).

²¹ Art 38(1)(b) of the Statute of the International Court of Justice (ICJ) cites as a source of international law, ‘international custom, as evidence of a general practice accepted as law’. T Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press 1989) 93.

²² The ICTY statute came into effect on 25 May 1993 with the adoption of UN Security Council (UNSC) Res 827, giving it temporal jurisdiction commencing on 1 January 1991 (UN Doc S/RES/827, 25 May 1993). The ICTR statute came into effect on 8 November 1994 with the adoption of UNSC Res 955 (UN Doc S/RES/955, 8 November 1994), giving it temporal jurisdiction from 1 January 1994.

²³ See G Mettraux, International Crimes and the ad Hoc Tribunals (OUP 2005) 14 and generally at 13–18.

²⁴ See, ICTY, Prosecutor v Kunarac (Judgment) IT-96-23-T (2 February 2001) para 460.

²⁵ The first, post-Second World War case to consider the crime of rape under international law was Akayesu in 1998. The Chamber defined the customary international prohibition as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive’: ICTY, Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998) paras 597–98. Three months later the Furunǆjia Chamber brought greater precision to the definition by making clear that the customary definition of ‘rape’ included forcible oral penetration: ICTY, Prosecutor v Furunǆjia (Judgment) IT-95-17/1-T (10 December 1998) para 185. During those three months there had been no significant developments with respect to opinio juris or state practice in relation to the crime of rape. The definition of ‘rape’ would be further refined by the Kunarac Chamber in 2001, when that Chamber found that under international customary law, the requirement of coercion described by Akayesu and Furunǆjia was more precisely expressed as ‘without the consent of the victim’: Kunarac, n 24. This clarification of the customary definition of ‘rape’ appropriately reflected the conduct of paramilitaries in Foča, BiH, who held vulnerable women for extended periods and perpetrated non-consensual intercourse on them, often in the absence of explicit indicia of coercion.

²⁶ Meron, n 21, 88.

²⁷ Ibid.

²⁸ R Lillich, ‘The Growing Importance of Customary International Human Rights Law’ (1995/96) 25(1) Georgia Journal of International and Comparative Law 1–30, 18. ~~at 18~~.

²⁹ D Shelton, ‘Normative Hierarchy in International Law’ (2006) 100(291) American Journal of International Law 291–323, 292. Professor Shelton was specifically referring to jus cogens norms in this passage. Shelton ‘recognizes that states and international institutions increasingly adopt norms or statements of obligations, in nonlegally biding texts’: ibid.

³⁰ See J Méndez, ‘The Right to Truth’ in C Joyner (ed), Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998 (Érès 1998) 255–78, 256.

³¹ See chapter on ‘Principle 4. The Victims’ Right to Know’.

³² International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, vol I (ICRC 2005) Rule 117 at 421.

³³ Albania*, Algeria, Angola, Argentina*, Armenia*, Austria*, Azerbaijan, Belgium*, Belize**, Benin, Bolivia (Plurinational State of )*, Bosnia and Herzegovina*, Brazil*, Bulgaria, Burkina Faso*, Burundi, Cabo Verde, Cambodia**, Cameroon, Cape Verde, Central African Republic**, Chad, Chile*, Colombia*, Comoros, Congo, Costa Rica*, Croatia, Cuba*, Cyprus, Czech Republic*, Denmark, Ecuador*, Finland, France*, Gabon*, Germany*, Ghana, Greece*, Grenada, Guatemala, Guinea- Bissau, Haiti, Honduras*, Iceland, India, Indonesia, Iraq**, Ireland, Italy*, Japan*, Kazakhstan**, Kenya, Lao People’s Democratic Republic, Lebanon, Lesotho*, Liechtenstein, Lithuania*, Luxembourg, Madagascar, Malawi**, Maldives, Mali*, Malta*, Mauritania*, Mexico*, Monaco, Mongolia*, Montenegro*, Morocco*, Mozambique, Netherlands*, Niger*, Nigeria**, Norway, Palau, Panama*, Paraguay*, Peru**, Poland, Portugal*, Republic of Moldova, Romania, Saint Vincent and the Grenadines, Samoa*, Senegal*, Serbia*, Seychelles**, Sierra Leone, Slovakia*, Slovenia, Spain*, Sri Lanka*, St. Vincent and the Grenadines, Swaziland, Sweden, Switzerland*, Thailand, The former Yugoslav Republic of Macedonia, Togo*, Tunisia*, Uganda, Ukraine**, United Republic of Tanzania, Uruguay*, Vanuatu, Venezuela (Bolivarian Republic of ), and Zambia* (‘*’ denotes ratification; ‘**’ denotes accession). Source: United Nations Treaty Collection. See <https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-16&chapter=4&clang=_en> accessed 13 January 2018.

³⁴ For examples of references to the right in international instruments see, eg, Art 13(1), Declaration on the Protection of All Persons from Enforced Disappearance, UN Doc A/RES/437/133 (18 December 1992); UNGA Res 44/159, UN Doc A/RES/44/159 (15 December 1989); UNSG, Statement, UN Doc SG/SM/9400 (1 July 2004); UNSC Report, UN Doc S/200/616 (23 August 2004); UNGA Res, 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, UN Doc A/RES/60/147 (16 December 2005). See also European Parliament, Recommendation 1056 (1987) on National Refugees and Missing Persons in Cyprus; Res 1414 (2004) on Persons Unaccounted for as a Result of Armed Conflicts or Internal Violence in the Balkans (23 November 2004); Res 1463 (2005) on Enforced Disappearances (3 October 2005). See also OAS Permanent Council, Res OES/Ser.G CP/CAJP-2278/05/rev.4 (23 May 2005).

³⁵ See Promotion and Protection of Human Rights: Study on the Right to the Truth, UN Doc E/CN.4/2006/91 (8 February 2006) at para 21. These states included Argentina, Belarus, Colombia, Cuba Georgia, Mauritius, Peru, Slovenia, Togo, Uruguay, and Venezuela.

³⁶ See nn 53–65 and the text associated with them.

³⁷ See, eg, Blanco-Romero v Venezuela (Judgment) IACtHR Series C no 138 (28 November 2005) para 62: ‘The Court does not consider the right to know the truth to be a separate right enshrined in Articles 8, 13, 25 and 1(1) of the Convention, as alleged by the representatives, and, accordingly, it cannot find acceptable the State’s acknowledgement of responsibility on this point. The right to know the truth is included in the right of the victim … to have the relevant State authorities find out the truth of the facts that constitute the violations and establish the relevant liability through appropriate investigation and prosecution.’ See also Castillo-Páez v Peru (Judgment) IACtHR Series C no 34 (3 November 1997) paras 85–86.

³⁸ See, eg, European Union: Art 42 of the Charter of Fundamental Rights of the European Union; US: Freedom of Information Act, § USC para 552; Australia: Freedom of Information Act of 1982; United Kingdom (UK): Freedom of Information Act 2000. It is important to note that the rights of access conferred by these Acts are often limited with respect to documents held by security services.

³⁹ See, eg, Dominic Kennedy, ‘Gays Should Be Hanged, Says Iranian Minister’ The Times (13 November 2007). In this article, the author employed the UK Freedom of Information Act to access documents, held by the Foreign Commonwealth Office, of a high-level meeting in which a senior Iranian official was asked about recent hangings of two boys alleged to have engaged in homosexual conduct. The official put forward the position that homosexuals should be tortured and executed, something officially denied by Iran.

⁴⁰ Bámaca-Velásquez v Guatemala (Order of the Court) IACtHR Series C no 70 (25 November 2000) Separate Concurring Opinon of Judge Ramírez, paras 19–22.

⁴¹ Contreras et al v El Salvador (Judgment) IACtHR Series C no 232 (31 August 2011) para 170.

⁴² See Méndez, n 30, 255–56. See Y Naqvi, ‘The Right to the Truth in International Law: Fact or Fiction’ (June 2006) 88(862) International Review of the Red Cross 245–73, 267.

⁴³ See Naqvi, n 42, 251.

⁴⁴ In domestic cases the right is realized through application of national laws to uncover and redress grave violations of human rights. For a detailed overview of national cases that followed some of the IACtHR ‘right to truth’ judgments, see Inter-American Commission on Human Rights, n 20, paras 69–84.

⁴⁵ See, eg, Report of the International Independent Fact-Finding Mission on the Conflict in Georgia (September 2009), available at <echr.coe.int/Documents/HUDOC_38263_08_Annexes_ENG.pdf> accessed 12 December 2017; Human Rights in Palestine and Other Occupied Arab Territories, UN Doc A/HRC/12/48 (25 September 2009) (‘Goldstone Report’) and OHCHR, Report of the OHCHR Investigation on Sri Lanka (OISL), UN Doc A/HRC/30/CRP.2 (16 September 2015).

⁴⁶ Truth commissions have been established to investigate events in: Algeria, Argentina, Australia, Bolivia, Burundi, Canada, Chad, Chile, Democratic Republic of Congo, Ecuador, El Salvador, Ethiopia, Germany, Ghana, Grenada, Guatemala, Haiti, Honduras, Indonesia, Ivory Coast, Kenya, Korea, Liberia, Morocco, Nepal, Nigeria, Panama, Paraguay, Peru, Serbia and Montenegro, Sierra Leone, Solomon Islands, South Africa, South Korea, Sri Lanka, Thailand, Timor Leste, Togo, Uganda, and Uruguay. For an assessment of the work of some of these truth commissions see P Hayner, ‘Fifteen Truth Commissions—1974 to 1994: A Comparative Study’ (1994) 16 Human Rights Quarterly 597.

⁴⁷ See de Greiff Report, n 19, para 26.

⁴⁸ See, eg, The National Commission on the Enforced Disappearance of Persons (CONADEP).

⁴⁹ See, eg, Commission for Reception, Truth and Reconciliation in East Timor’s mandate included violations of a very broad array of international human rights. The enabling document (UNTAET/REG/2001/10) gave the Commission competence to investigate violations of ‘international human rights standards’ as defined in s 2 of UNAET/REG/1999/1. That section includes a comprehensive list of human rights instruments, including the ICCPR and the International Covenant on Economic, Social and Cultural Rights. Section IV of The Truth and Reconciliation Commission Mandate of Liberia gives the Commission jurisdiction over, inter alia, ‘economic crimes, such as the exploitation of natural or public resources to perpetuate armed conflict’.

⁵⁰ The Truth and Reconciliation Commission in South Africa was tasked with determining a complete picture of the possible nature, causes, and extent of gross human rights violations. The Commission recognized from the outset that it was impossible to carry out all of its tasks simultaneously, and resorted to a process of prioritizing aspects of its mandate. See South African Truth and Reconciliation Commission, Final Report, vol I, ch 4, subs 5, para [34].

⁵¹ See de Greiff Report, n 19, paras 40, 51, and 95.

⁵² See Archdiocese of Guatemala, ‘Recuperación de la Memoria Histórica (1998) <www.odhag.org.gt/html/Default.htm> accessed 14 January 2018; and Greensboro Truth & Reconciliation Commission, Final Report, 25 May 2006 <www.greensborotrc.org/> accessed 14 January 2018.

⁵³ See, eg, the following series of cases before the IACtHR: Blake v Guatemala IACtHR Series C no 36 (24 January 1998) para 97; Villagran-Morales et al IACtHR Series C no 63 (19 November 1999) para 253.6; Bámaca-Velásquez v Guatemala (Order of the Court) IACtHR Series C no 70 (25 November 2000) paras 159–66, 195, 230; Barrios Altos v Peru IACtHR Series C no 75 (14 March 2001) para 51.2(c); Mapiripán Massacre v Columbia IACtHR Series C no 134 (15 September 2005) paras 140–46, 195–241, 335.1, 335.5; Pueblo Bello Massacre v Columbia, IACtHR Series C no 140 (31 January 2006) paras 163, 169–212, 296.3, 296.4; Baldeón-Garcia v Peru IACtHR Series C no 147 (6 April 2006) paras 127–30, 139–69, 218.4, 218.5; Ximenes-Lopes v Brazil IACtHR Series C no 149 (4 July 2006) paras 155–63, 262.3, 262.4; Montero-Aranguren et al v Venezuela (Detention Center of Catia) (Judgment) IACtHR Series C no 150 (5 July 2006) paras 53, 160.2 (Venezuela acknowledged its violation of Arts 5 and 1(1)); Goiburú et al v Paraguay (Condor) IACtHR Series C no 153 (22 September 2006) paras 95–104, 111–33, 192; La Cantuta v Peru (Judgment) IACtHR Series C no 162 (29 November 2006) paras 81–98, 122–29, 135–61, 254.5, 254.6; Anzualdo Castro v Peru (Preliminary objection, merits, reparations and costs) IACtHR Series C no 202 (22 September 2009) paras 113–14; Las Dos Erres Massacre v Guatemala (Preliminary objections, merits, reparations and costs) IACtHR Series C no 211 (24 November 2009) para 213 (‘[T]he impunity that persists in the instant case is experienced by the alleged victims as a new traumatic impact, which has been generated by feelings of anger, frustration and even fear of retaliation due to their search for justice.’); Chitay Nech et al v Guatemala, IACtHR Series C no 212 (25 May 2010) para 209; and Manuel Cepeda Vargas v Colombia, IACtHR Series C no 213 (26 May 2010) para 195.

⁵⁴ The ECtHR took a similar approach to the IACtHR in Cyprus v Turkey, 2001- IV ECtHR 1 (2001). The HRCBiH has followed the course established by the regional human rights courts and developed criteria for identifying holders of the right. See Unković v Bosnia and Herzegovina, Case no CH/99/2150 (Decision on review) (10 May 2002) para 114 and Srebrenica Cases, Case no CH/01/8365 (Decision on admissibility and merits) (7 March 2003) paras 181, 191, 202.

⁵⁵ The Human Rights Committee has consistently found that the prohibition of cruel treatment found in Art 7 of the ICCPR extends to the suffering caused to families whose relatives have been disappeared or killed while in government custody. See María del Carmen Almeida de Quinteros et al v Uruguay, Communication no 107/1981, UN Doc CCPR/C/OP/2 (1990) at 138; ~~Burkino Faso~~Miriam Sankara et al Communication no 1159/2003, UN Doc CCPR/C/86/D/1159/2003 (11 April 2006) ~~4 November 2006)~~; Bousroual v Algeria, CCPR/C/86/D/1085/2002 (15 March 2006); Titiahonjo v Cameroon, CCPR/C/91/D/1186/2003 (26 October 2007); and Zohra Madoui v Algeria, CCPR/C/94/D/1495/2006 (1 December 2008).

The IACtHR has found similarly with respect to Art 5 of the ACHR in over 14 cases, See, eg, Blake v Guatemala, IACtHR Series C no 36 (24 January 1998) paras 114–16; and Chitay Nech et al v Guatemala, IACtHR Series C no 212 (25 May 2010) para 209. For a comprehensive list and discussion of the IACtHR’s jurisprudence on right to truth, see D Groome, ‘Right to Truth in the Fight Against Impunity’ (2011) 29 Berkeley Journal of International Law 175.

The ECtHR has found such inhuman treatment to be a violation of Art 3 of the ECHR. See Cyprus v Turkey App no 25781/94 (Judgment) [2001] ECHR 1. In May 2014, the Court awarded the surviving family members of missing persons €30,000,000 for Turkey’s violation of their right to truth. Cyprus v Turkey App no 25781/94 (Judgment) (Just Satisfaction) [2014] ECHR 1 [58].

The HRCBiH has found similarly in its application of Art 3 of the ECHR. See Srebrenica Cases, Case nos CH/01/8365 (Decision on Admissibility and Merits) (7 March 2003) paras 181, 191, 202; and Unković v Bosnia and Herzegovina, Case no CH/99/2150 (Decision on Review) (10 May 2002) paras 101–19.

Art 5 of the ACHPR has been found to offers similar protection for families of disappeared persons. See Amnesty International and Others v. Sudan, Communications nos 48/90 et al (AComHPR, 15 November 1999) para 54. See also Article 19 v Eritrea, Communication no 275/2003 (ACHPR, 30 May 2007).

Principle 14 of the Declaration of Human Rights of the Association of Southeast Asian Nations (ASEAN) similarly protects against cruel treatment.

⁵⁶ The Human Rights Committee has found such to be a violation of Art 2(3) of the ICCPR. See Bousroual v Algeria, UN Doc CCPR/C/86/D/1085/2002 (15 March 2006) [11]; Zohra Madoui v Algeria, UN Doc CCPR/C/94/D/1495/2006 (1 December 2008) [8]. The IACtHR has found in over 10 cases that the right to truth was protected under the right of access to justice. See, eg, Ximenes-Lopes v Brazil, IACtHR Series C no 149 (4 July 2006) para 262.4. For a complete list and comprehensive discussion of the IACtHR’s jurisprudence, see Groome, n 55. The ECtHR came to a similar conclusion with respect to Art 13 of the ECHR—the parallel provision to Arts 8 and 25 of the ACHR. In Cyprus, the court concluded that Turkey’s failure to provide Greek-Cypriots with a remedy to contest interference with their rights under Art 8 of the ECHR and Art 1 of Protocol 1 constituted a violation of Art 13: Cyprus v Turkey ECHR 2001- IV 1, para 192. See also Amnesty International and Others v Sudan, Communication nos 48/90 et al (AComHPR, 15 November 1999) para 51. Principles 3 (equal protection of law) and 5 (right to effective remedy) of the ASEAN Declaration of Human Rights would provide a similar basis for application of a right to the truth.

⁵⁷ See Las Dos Erres Massacre v Guatemala (Preliminary Objections, Merits, Reparations and Costs) IACtHR Series C no 211 (24 November 2009) para 232.

⁵⁸ Vélez Restrepo and Family v Columbia (Preliminary Objections, Merits, Reparations and Costs) IACtHR Series C no 248 (3 September 2012) paras 233–52.

⁵⁹ La Cantuta v Perú (Judgment) IACtHR Series C no 162 (29 November 2006) para 189.

⁶⁰ ~~Burkino Faso~~,Miriam Sankara et al, Communication no 1159/2003 , UN Doc CCPR/C/86/D/1159/2003 (11 April 2006) ~~(4 November 2006)~~; see also Madoui v Algeria UN Doc CCPR/C/94/D/1495/2006 (1 December 2008) paras 3.4–3.6.

⁶¹ Cyprus v Turkey, ECHR 2001- IV 1, para 161.

⁶² Unković v Bosnia and Herzegovina, Case no CH/99/2150 (Decision on Review) (10 May 2002) para 126. See also Srebrenica Cases, Case nos CH/01/8365 et al (Decision on Admissibility and Merits, Bosnia and Herzegovina: Human Rights Chamber for Bosnia and Herzegovina) (7 March 2003) para 181.

⁶³ Article 19 v Eritrea, Communication no 275/2003 (ACHPR, 30 May 2007). See also Constitutional Rights Project and Another v Nigeria, Communication nos 143/95 and 150/96 (AComHPR, 5 November 1999). Note, Art 19 of the African Charter on the Rights and Welfare of the Child obliges state parties to gives a child’s family members ‘essential information concerning the whereabouts of the absent member or members of the family’.

⁶⁴ See, eg, Bámaca-Velásquez v Guatemala (Order of the Court) IACtHR Series C no 70 (25 November 2000) paras 199–200.

⁶⁵ These remedies included: conducting an investigation; publishing the IACtHR’s judgment (factual sections); showing a documentary about the massacre; conducting a public ceremony; building a monument commemorating the event; and creating a web page. Las Dos Erres Massacre v Guatemala (Preliminary Objections, Merits, Reparations and Costs) IACtHR Series C no 211 (24 November 2009) paras 149, 310.

⁶⁶ See LD Johnson, ‘Ten Years Later: Reflections on the Drafting’ (2004) 2 Journal of International Criminal Justice 368–79, 378. See also Prosecutor v Karadžić and Mladić (Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence), ICTY, IT-95-5-R6 and IT-95-18-R61 (11 July 1996) para 3.

⁶⁷ The International Commission on Missing Persons (ICMP) has been involved in the excavation of over 3,000 mass graves and been at the forefront of using the latest forensic techniques to identify mortal remains. See <www.icmp.int/> accessed 12 December 2017. In December 2014, the foreign ministers of several European countries signed an agreement recognizing the important role that ICMP plays and conferring upon it a legal basis for global operations.

⁶⁸ Prosecutor v Lubanga (Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008) ICC-01/04-01/06OA9OA10 (11 July 2008) paras 30, 38, 64, and 97–99.

⁶⁹ See, eg, OHCHR, Right to the Truth, Human Rights Resolution 2005/66, fifty-ninth meeting, 20 April 2005. ‘Acknowledging also that the right to the truth may be characterized differently in some legal systems as the right to know or the right to be informed or freedom of information’.

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