Contextualizing the Evolving Right to Truth

On March 24th, the United Nations celebrated the International Day for the Right to the Truth. However, not many people outside the halls of Geneva and New York are even aware of this international day, which was created to honor, pay tribute, and recognize the victims of gross human rights violations. "The right to truth" is one of the most nascent international norms within the plethora of human rights recognized by the United Nations – and one that is ultimately derived from instruments such as the Geneva Conventions, the International Convention for the Protection of All Persons from Enforced Disappearance, and a growing body of international jurisprudence. The "right to truth" is based on the overall principle, as enumerated by Human Rights Council Resolution 9/11, that "the public and individuals are entitled to have access, to the fullest extent, to practicable information regarding the action and decision-making processes of a government". It is an important human rights provision for the strengthening of democracy, as democracy depends on transparency and accountability for the maintenance of its integrity. It is recognized that the right to truth has many factors that affect the attainment of its future applicability; one such obstacle is that the greater degree of accountability it seeks to achieve is often disrupted or prevented by what is often referred to as a State's security interests. This therefore creates a conflict or dilemma, in that there is doubt as to what extent a State can disclose or provide the whole truth without compromising its security interests. It is through the right to truth that oppressive governments have and will be made answerable for past actions, whilst simultaneously acting as a deterrent for potential abuses. The overall intricacy and resilience of such a concept can be seen in its early development in that it has advanced steadily as a means of catering to the human rights of individuals emanating from truth commissions. In past cases such an ideal has been effective in dealing with post-conflict accountability and reconciliation. The basis of such truth commissions has been the mandate and authority for an official investigation of past abuses, permitting a cathartic public airing of the evil and pain that has been inflicted, resulting in an official record of truth, providing forums for victims and their relatives to tell their story, having made part of the official record and thereby providing a degree of formal basis for subsequent compensation of victims and or punishment of perpetrators. From this one is able to discern that the final and major purpose of such a mandate is for the dispensation of responsibility to violating parties, in that the guilty participants would be identified and held responsible for their actions towards individuals. Such an idea is demonstrated by the accomplishments of truth commissions of note, such as in the case of the truth commission convened in Uganda in 1975 to investigate alleged atrocities, including the disappearance of people during the Idi Amin Dada regime of the 70s. At the conclusion of that commission, for instance, it was able to have "...produced a significant amount of information, which was then used by authorities in prosecuting members of the military junta that had ruled the country," according to Gareth Evans. Such outcomes held rather prevalent implications, in that under the guise of truth, there was investigation into not only individual abuses, but also investigation into the full context in which abuses occurred. It took into consideration the Government, security forces, and overall societal factors that allowed for the inflicting of such violations and was meant to set the standard for thorough investigation into past abuses in order to establish true and accurate accountability. Consequently, the premise that the recognition of the right to truth and its furtherance of accountability is strengthened due to the fact that today such a right has maintained those central standards set by successful early truth commissions, and it continues to evolve to ensure the universality of human rights and has maintained the centrality of accountability. Additionally, as observed by UN rights chief, Navi Pillay, over time such a right has developed and "...has extended beyond its initial links to missing and disappeared persons, to encompass gross violations of human rights such as extrajudicial executions and torture". Hence, with such a strong basis, and continuous progression, it is only natural that such a right will continue to be effective in fostering greater accountability in future cases of abuse. In expanding on the prospect of greater accountability as a natural outcome of the right to truth, it is necessary to acknowledge a key element of such a right, which is that of legitimate investigation. For any justice system to function there have to be rules that are equitable and a body that is above corruption for its enforcement and administration. Moreover, for proper application of law, there must be legitimate investigation and disclosure of the whole truth; otherwise there will be certain negative implications, in that the distribution of liability will be impossible in State-governed bodies. More specifically, it should be understood that the right to truth stands out as being essential towards the positive administration of justice. Such a right is of paramount importance, in its own respect, in order for there to be genuine effectiveness and accountability when dealing with the violation of certain essential human rights by States or State actors. In cases, for example, concerning the right to life or forcible disappearances, the courts interpreted such situations as requiring an effective investigation, which is a central element emanating from the right to truth, and if not included, holds certain negative implications concerning the promotion of human rights, or as appropriately stated: In cases where families have sought judicial recourse, courts have consistently found that the failure to meaningfully investigate a disappearance constituted a violation with respect to next of kin of the right to a fair trial and the right to judicial protection enshrined in article 8(1) and 25(1) of the American Convention on Human Rights in relation to the general obligation to respect and guarantee the right embodied in article 1(1). It is apparent that without an investigation there is the suppression of the effective administration of justice. Furthermore, a State's obligation under Article 1(1) of the European Court of Human Rights (ECHR) is to secure fundamental human rights. This is provided for through the right to truth, or as stated: "the independent nature of the State's obligation to provide 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". In recounting the case of El-Masri v the Former Yugoslav Republic of Macedonia, there is controversy as to the effectiveness of the right to truth in ensuring greater accountability through the requirement of proper investigation, in that the sovereign State, in past cases, in the name of their security interests, has hampered the full and effective application of such a right or, as more aptly stated by Council of Europe Investigator Dick Marty: "...some European governments have obstructed the search for the truth and are continuing to do so by invoking the concept of State secrets". Moreover, the eventual uncovering of truths is due to the attention brought under the right to truth, in that such abuses are properly investigated, attract worldwide attention, trigger inquiries by international and intergovernmental organizations, and focus negative attention on authorities hiding the truth by resorting to the State secret privilege. The argument can be made that the right is effective also in future cases, as in order to avoid negative attention States are likely to be more forthcoming with information. One is left to speculate that the reasoning behind the United States recently disclosing the Senate Intelligence Committee's Report on "enhanced interrogation techniques" or torture of persons suspected of having ties to al-Qaeda immediately after the tragic events of 9/11, had more to do with the acceptance and recognition of the right to truth. For the United States to have done so was commendable, as it is a model of democratic transparency, and therefore enhances and strengthens the need or importance of transparency, but also furthers the premise that through the implications provided for with the acknowledgment of the right to truth, there has been ever-greater accountability. It is my belief that this act by the US indicates the future effectiveness of the right to truth in its allowing for greater accountability due to the fact that adherence to such a right is fundamental to a just and civilized world. A central effect of the right to truth that also advances the idea that there will be greater accountability in line with its greater acceptance is the fact that such a right ensures victims' access to both criminal and civil remedies, and establishes effective protection and support for victims. This is done, as previously stated, through investigation and the accumulation of evidence. The continued development of dialogue between the national and international bodies promotes the importance of protection of human rights and, therefore, the resultant outcome of the creation of standards and precedence. This allows for greater accountability in future cases: Dermont Groome, Senior Prosecuting Trial Attorney at the International Criminal Tribunal for the former Yugoslavia, explains that "this archive will help close an impunity gap that presently exists with respect to perpetrators."