The Right to the Truth

Although it found early expression in Additional Protocol I of the Geneva Conventions (1977), which established the right of the families of the missing to know the truth about their loved ones’ whereabouts and the circumstances surrounding their deaths, it was not until the 1980s that the right to the truth began to find form. In large part, articulation of the right to the truth was precipitated by the spate of disappearances that took place in Latin America in the 1970s and 1980s (Roht-Arriaza 2006: 3). In the case of Velasquez Rodriguez v. Honduras, the Inter-American Court of Human Rights ruled that ‘[t]he State is obligated to investigate every situation involving a violation of the rights protected by the [American] Convention’ (1988: 176). In addition, it specified that the obligation to investigate requires the state to undertake ‘[a]n effective search for the truth’ which must continue ‘as long as there is uncertainty about the fate of the person who has disappeared’ (1988: 177 and 181). In 1999, the case of Ellacuria v. El Salvador, which addressed the assassination of the Jesuit priest, Ignacio Ellacuria, affirmed the right of the victim’s family to ‘know the truth with respect to the facts that gave rise to the serious human rights violations that occurred in El Salvador, and the right to know the identity of those who took part in them’ (1999: 221).

The rulings made by the Inter-American Court of Human Rights in these and other cases (Antkowiak 2001-2002) reflected developments in other areas of international law concerning the truth. In 1993, the van Boven Report, commissioned by the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities reiterated the right to the truth for the victims of gross violations of human rights and their families. It recommended that while ‘[verification of the facts and full and public disclosure of the truth’ may constitute part of the right to a remedy, a ‘complete and public revelation of the truth...[is] the first requirement of justice’ (van Boven 1993: 134). Similarly, the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations of International Human Rights Law and Serious Violations of Humanitarian Law maintains that ‘[a] victim of a gross violation of international human rights law or of a serious violation of international humanitarian law’ has the right to ‘[verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations’ (2005: 22). Most recently, the International Convention for the Protection of All Persons from Enforced Disappearances, which entered into force in 2010, affirms ‘the right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end’ (2006: preamble).

Although truth may be garnered by documenting historical events, developing and maintaining archives, and composing history books, or by engaging in customary storytelling processes (Brankovic and van der Merwe 2014: 10), the right to the truth has been most prominently operationalized through the institution of truth commissions or, in some cases, truth and reconciliation commissions. These too emerged in the context of disappearances, first in Uganda, where a Commission of Inquiry was established to ‘investigate the accusations of disappearances at the hands of the military forces’ during the early years of Idi Amin’s rule (Hayner 2002: 51), and then in Bolivia, Argentina, Uruguay, El Salvador and, of course, South Africa.

According to Ruti Teitel, a truth commission is ‘an official body, often created by a national government, to investigate, document, and report upon human rights abuses within a country over a specified period of time’ (2003: 78). Preferring a more expansive definition, Priscilla Hayner argues that truth commissions are:

Bodies that share the following characteristics: (1) truth commissions focus on the past; (2) they investigate a pattern of abuse over a period of time, rather than a specific event; (3) a truth commission is a temporary body, typically in operation for six months to two years, and completing its work with the submission of a report; and (4) these commissions are officially sanctioned, authorized, or empowered by the state (and sometimes also by the armed opposition, as in a peace accord. (2002: 14)

As Geoff Dancy, Hun Joon Kim and Eric Wiebelhaus-Brahm note, however, specifying that truth commissions must complete a report ‘seems needlessly limiting’ (2010: 48). For example, the report of the Ugandan truth commission was never published while Bolivia’s commission was disbanded after two years without having produced a report at all. As we will see in this volume, disagreements over the significance of a published report continue: in the case of the Solomon Islands, a report was written and circulated on the internet but has not, to date, been published in an official form.

Of course, the most prominent TRC of the 1990s, and one that did produce a lengthy published report was that which took place in South Africa. The South African TRC was chosen as a ‘third way’ for the post-apartheid country to deal with the legacy of systematic human rights violations, a compromise between the extremes of criminal, Nuremberg-style trials, and blanket amnesties (Tutu 1999: 30). Rather than simply being a way to avoid both prosecutions and impunity, however, the TRC embraced the right to the truth (du Bois-Pedain 2007: 176). That is, the truth sought by the TRC was conceived in explicit opposition to that on which the ‘formal trappings of justice,’ in the form of criminal prosecutions, is based. In large part, the TRC thus conceived truth as a key element of reconciliation and restorative, as opposed to retributive justice (Zehr 1997: 68). It was underpinned by the idea that only once the wrongs of the past had been aired would it be possible for South Africa to move forward toward true societal reconciliation. For this reason, the Promotion of National Unity and Reconciliation Act, which established the TRC, took the radical step of allowing amnesties to be granted to perpetrators of politically motivated human rights abuses ‘who [made] full disclosure of all the relevant facts relating to acts associated with a political objective and [complied] with the requirements of [the] Act’ (1995: 3(1)(b)). That is, amnesties were offered in exchange for the truth.

At the same time, the South African TRC also ‘affirmed the “healing potential of storytelling, of revealing the truth before a respectful audience and to an official body”’ (Hamber 2003: 158). In particular, the Chair of the TRC, Archbishop Desmond Tutu was fond of the claim that ‘there is no healing without truth’ (in Kiss 2000: 72). Since then, the notion that ‘revealing is healing’ has become both a common justification for the institution of TRCs and a source of significant controversy (Jeffery 2015: 46). As Brandon Hamber explains, this theory suggests that in psychological terms ‘past traumas do not simply pass or disappear with the passage of time.’ Instead, he argues, ‘psychological restoration and healing can only occur through providing space for survivors of violence to be heard, and for every detail of that traumatic event to be re-experienced in a safe environment’ (2003: 158).

Considered as a whole, the right to the truth in response to human rights violations has multiple underpinnings. In legal terms, it is founded on the notion that both the victims of human rights crimes and their families possess the right to know the circumstances surrounding the perpetration of acts proscribed in international law. In moral and practical terms, the pursuit of the truth in the aftermath of human rights abuses is underpinned by the arguments that truth is a prerequisite for reconciliation and that truth-telling has a cathartic, healing effect for individuals. On these bases, several post-conflict states have followed the South African model and instituted TRCs. Among these is, of course, the case of the Solomon Islands.

Yet, an increasing number of scholars are beginning to question the overarching assumption that the institution of a TRC or ‘a focus on legal process is adequate to resolve individual and social harm’ (Fletcher and Weinstein 2002: 584). Focusing on individual experiences, Stover (2005: 15) and others challenge the idea that truth-telling is somehow ‘cleansing.’1 In particular, although the South African TRC promoted the idea that ‘revealing is healing,’ its final report acknowledged that the results of testifying were decidedly mixed: testifying brought healing to some, but certainly not all, who spoke before the commission (Hamber 2009: 72). In many cases, the report concluded, ‘testifying or making a statement “initiated more than it closed”’ (Hamber 2009: 72). Several academic studies have confirmed this finding (Allan and Allan 2000: 463) while others are more equivocal in their assessments of the therapeutic benefits of truth-telling (Mendeloff 2009: 592-593)

As Louise Vella writes in Chapter 6 in the case of the Solomon Islands, problems associated with documenting women’s experiences of the Tensions and, in particular, sexual violence, indicate that for many women, revealing can be more harmful than it is healing. As Vella’s chapter reveals, in contexts in which the public airing of grievances is not deemed culturally appropriate, the activities of TRCs have the potential to hamper reconciliation processes. Similarly, as Holly Guthrey and Karen Brouneus demonstrate in Chapter 4, the connection between the activities of truth commissions and the achievement of reconciliation is more complex and multifaceted than it is often portrayed to be. As their chapter reveals, in the case of the Solomon Islands, the truth commission process contributed to particular aspects of reconciliation by providing a forum for exchanges between individual victims and perpetrators to take place. At the same time, however, by bringing stories of injustice to light, the TRC also opened up possibilities for revenge and, in doing so, limited its ability to achieve societal reconciliation.

 
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