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Crafting a “Right to Truth” in International Law: Converging Mobilizations, Diverging Agendas?

La fabrique d’un “droit à la vérité” en droit international : des mobilisations convergentes pour des agendas divergents ?
Patricia Naftali

Résumés

Cette généalogie du “droit à la vérité” explore l’ambivalence de la construction de ce nouveau concept dans le discours du droit international. L’article démontre que si le “droit à la vérité” a émergé à l’intersection de plusieurs mobilisations, ses contours demeurent fluctuants en raison de la diversité de leurs intérêts et de leurs agendas. Il met en évidence comment différents entrepreneurs de vérité mobilisent le “droit à la vérité” comme ressource pour réformer le droit international, et comment leurs visions de ce concept peuvent se renforcer ou se concurrencer. L’ambivalence du concept de “droit à la vérité” explique donc à la fois son potentiel mobilisateur dans des causes variées, et ses limites intrinsèques liées à la concurrence de ses définitions et appropriations. Si la complémentarité de ces différentes visions du “droit à la vérité” est aujourd’hui célébrée dans le discours du droit international, l’avènement de cette catégorie polysémique occulte surtout un certain nombre de conflits autour des conceptions de la justice et plus généralement, autour des priorités politiques et sociales à donner au traitement des atrocités de masse.

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Introduction

  • 1 See e.g., Inter-American Court of Human Rights, Bámaca-Velásquez v. Guatemala, Judgment on Merits ((...)

1In recent years, the “right to truth” of victims of mass atrocities has featured in international legal discourse as a multifaceted concept to urge an array of responses to State crimes, ranging from prosecutions and truth-seeking mechanisms to the preservation of archives and witness protection programme (UN-HRC, 2006, 9/11 Resolution; UN-OHCR, 2006a, Study on the right to truth). While this relatively new concept is increasingly recognized by international courts and human rights bodies1, its definition as a general right remains elusive, which led Yasmine Naqvi to conclude that lingering doubts about its normative content and parameters leave it somewhere above a good argument and somewhere below a clear legal rule (2006, 273). For instance, the United Nations Human Rights Council (UN-HCR) stresses that the concept may be characterized differently in some legal systems as the right to know or the right to be informed or freedom of information (UN-HRC, 2006, 9/11 Resolution, §14).

2This paper elaborates on the evasiveness of the concept as both the condition of its striking transnational circulation and its varying success from the perspective of its promoters. To this end, it scrutinizes the underlying representations and goals of the main architects of an express “right to truth” before international institutions. No comprehensive socio-legal analysis of the construction of the “right to truth” as a cause has yet been made to account for the plurality of its meanings, and particularly to interrelate its unique polysemy with its mobilizations in international law. Most legal scholars downplay norm tensions and contradictions in their efforts to further consolidate the logical coherence of an emerging norm (see e.g. Méndez, Bariffi, 2012). A sociology of legal mobilizations differ from other juridical idealist accounts of the emergence of the “right to truth”, which either overlook the multiplicity of truth stakeholders, or take for granted their common interests in the fight against impunity (Park, 2010 ; Groome, 2011). A sociological approach to agents as cause lawyers who construct transnational emerging norms, not only allows to pay attention to different actors’ rationales and the use of law as a strategic resource for broader reform (Israël, Gaïti, 2003), but also to the possibility of conflicting and competing normative agendas (Dezalay, Garth, 2011). Contrary to consensualist approaches whereby new norms emerge as harmonious products of epistemic communities and transnational activist networks (Haas, 1992; Keck, Sikkink, 1998), I argue that while the success of the “right to truth” as a resource derives from its capacity to accommodate a plurality of causes, it may also turn into a constraint given the diversity of truth entrepreneurs and interests at play in its normalization. Drawing on the analysis of processes of frame alignment and disalignment among truth activists (Snow et al., 1986; Seroussi, 2008), the research thus aims at exploring the ambivalence of the “right to truth” as a resource to illustrate how it may be simultaneously enabling and constraining, from the perspective of its legal mobilizations.

3To this end, I examine legal mobilizations as deliberate advocates’ strategies to further the construction of the “right to truth” as a new human right in international law, and evaluate their effects as they construct and negotiate the contours of the “right to truth” before international bodies. The first part highlights the plurality of causes endorsed under the “right to truth” and reveals how its construction in international law results from the convergence of heterogeneous mobilizations of the concept before international bodies. The second part points to the limits of these converging mobilizations, as it sheds light on the tensions underlying the normalization of the “right to truth” as a result of these diverse agendas. In particular, it stresses how advocates of criminal justice struggle and compete with other truth activists who advocate for politics of reparations, truth commissions and amnesties. In this perspective, the “right to truth” may appear as both a catalyst and an impediment to the particular causes advocated by truth entrepreneurs, just as its versatility and fluctuating contours may reflect a compromise between irreconcilable representations of the content, nature and holders of this right.

I - A Resource at the Confluence of Several Mobilizations

4Why do truth activists advocate for the “right to truth” and what is at stake behind this elastic term? This part argues that the “right to truth” has come to aggregate heterogeneous mobilizations of different nature, which all vest an interest in the recognition of this concept to expand the scope of international law to new issues. I have thematized distinct pathways of development, which converged over time to advocate the normalization of the “right to truth” in international law. I briefly contextualize these overlapping and intersecting mobilizations, mainly: the struggle against enforced disappearances; the fight against impunity; the emergence of new international professional practices related to truth-finding practices; and finally, the fight against State secrecy abuse. A genealogy of these mobilizations is crucial to understand not only the polysemy of the “right to truth” as a legal category, but also how older and newer mobilizations interrelate and have mutually reinforced each other with a view to reform international law. In doing so, I also underline how truth entrepreneurs endeavour to utilize the “right to truth” as a nexus between different fields, thereby bridging gaps between different regimes and expanding the reach of international law.

1) The Fight against Enforced Disappearances in Latin America

5The first entry point of the “right to truth” in international law is connected to the juridicization of a leitmotiv of family-based organizations of victims of enforced disappearances, founded across Latin America to find back their missing relatives. In 1970s onwards, relatives began to frame their demand for information on the fate and whereabouts of their next-of-kin around the language of “truth” to navigate the political and legal constraints of dictatorships. First, on a political level, “truth” provided a neutral language to protest against State denial on this secret tactic of repression, while not appearing overtly critical of the regime. The first public statement of Argentine Madres de Plaza de Mayo, founded during Videla’s junta (1976-1983), illustrates how “truth” appeared as a resource to resist the clandestine crimes of the junta. Published in 1977, and entitled “For a Peaceful Christmas. We only demand Truth”, it read as follows:

To his Excellency Mr. the President, the Supreme Court of Justice, the high commanders of armed forces, the military junta, religious authorities and the national press: (…) To whom should we turn to know the truth on our children’s fate? We incarnate the suffering of hundreds of mothers and spouses of disappeared. (…) The truth we ask for is to know whether our disappeared are alive or dead, and where they are. (…) We can no longer stand the most cruel torture for mothers, that is, the uncertainty on our children’s fate. (…) We have exhausted all the means to find truth and that’s why, today, we publicly request the help of all benevolent people who really cherish truth and peace, and of all those who believe genuinely in God and the final judgment, which no one will escape2

  • 3 See e.g., Declaration of Principles in the Statutes of the Association Madres de Plaza de Mayo (Aug (...)
  • 4 FEDEFAM was also instrumental to the adoption of the 1992 UN Declaration and the 1994 Inter-America (...)
  • 5 Article 2 of Proyecto de Convención Internacional sobre Desaparecimiento Forzado Elaborado por la F (...)
  • 6 GA Res. 61/177, UN Doc. A/RES/61/177 (December 20, 2006), entered into force on December 23, 2010.
  • 7 See also the preambles of CHR and HRC resolutions.
  • 8 On the right to know, see generally Crettol, La Rosa, 2006.

6As the excerpt shows, families invoked “truth” at the intersection of humanitarian, religious and cultural references, to initially present the search for the disappeared as a moral imperative. Their insistence on their own victimhood and their apolitical agenda3 further aimed at depoliticizing the question of the legitimacy of State violence vis-à-vis the disappeared, especially since the National Security Doctrine ideology presented the latter as “subversive terrorists” hiding within leftist political parties, trade unions and universities. This framing helped Madres to access new avenues to publicize their fight, as much as they inspired other historical promoters of the “right to truth” (see Joinet, 1997; Grünfeld, 2000). Second, on a legal level, mobilizations for “the right to truth” will take various forms to remedy the absence of legal protection of victims and their relatives. They will conflate with efforts to outlaw enforced disappearances in a universally binding instrument from 1980 until 2005 (see Scovazzi, Citroni, 2007). For instance, FEDEFAM, the Latin American Federation for the Associations of Relatives of Detained-Disappeared, created to this effect in 19814 and which included the Madres, came up with the first draft treaty to criminalize enforced disappearance, defined as any act or omission intended to conceal the fate of an opponent or a political dissent and whose whereabouts are unknown to his family (…)5. The drafting of the International Convention for the Protection of All Persons from Enforced Disappearance (hereafter “ICED”)6 between 2001 and 2005, by the working group of the United Nations Human Rights Commission (hereafter ICED Drafting Group – DG), confirms that FEDEFAM envisioned the “right to truth” as a corollary of the incrimination of the phenomenon and of a substantial human right not to be subject to enforced disappearances, including for victims’ relatives (see ICED-DG, 2003; ICED-DG, 2004, 48-50). Additionally, these mobilizations will coalesce with older and broader humanitarian mobilizations to trace missing persons following combat or displacement, such as the International Committee of the Red Cross (ICRC), which has long worked as an interface between families and governments to facilitate exchange of information and the identification of graves (ICRC, 2003a). Meanwhile, truth entrepreneurs have interrelated the “right to truth” of relatives of victims of enforced disappearances to the “right to know” the fate of families of missing persons, codified in Article 32 of the 1977 Additional Protocol I to the Geneva Conventions (ICJ, 2001)7. As this provision limits the scope of the “right to know” to international armed conflicts and inter-State duties, they have sought to bridge gaps within international humanitarian law, and between the former and international human rights law, to extend the protection of victims of enforced disappearances to contexts of internal violence. Finally, human rights bodies also gradually recognized families’ right to know the fate of the disappeared under various rights which echo Madres’ mobilizations, such as the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment8.

2) The Fight against Impunity and Blanket Amnesties

  • 9 Article 6(5) of Protocol Additional to the Geneva Conventions (August 12, 1949), and Relating to th (...)

7These mobilizations against enforced disappearances closely intersect with broader mobilizations against impunity for serious violations of international human rights and humanitarian law throughout the 1990s, which constitute another point of entry of the “right to truth” in international law. Transitions to more democratic regimes in Southern Europe in the late 1970s and Latin America around the mid-1980s, witnessed a generalization of amnesties to the benefit of perpetrators of political violence. Here, the “right to truth” provided another resource to challenge the idea of amnesties as state prerogatives, with a view to inflect the political and legal context overly favourable to amnesties. First, amnesties were not prohibited under international law: on the contrary, they were encouraged in internal armed conflicts9 and mostly upheld by Supreme Courts in most Latin American countries (Roht-Arriaza, Gibson, 1998). In addition, they were justified by the international community as tools of peace-making (Andreu-Guzman, 2008) and by successor regimes as politics of national reconciliation. Many scholars have described how this situation prompted a new orientation of the human rights movement, from denouncing ongoing abuses to the pursuit of accountability of past abuse committed by prior governments (Arthur, 2009; Méndez, 1997). In particular, despite divergences over the extent of State obligations to prosecute and punish perpetrators of atrocities (Zalaquett, 1991-1992; Orentlicher, 1991; Nino, 1991), a consensus emerged on the duty of transitional governments to ascertain the truth about past violations (Henkin, 1989; Park, 2010), which set the agenda of the global anti-impunity front in 1989 and 1990 (HRW, 1989; AI, 1991; Kritz, 1995, 217-221).

  • 10 One of the petitioners, Emilio Mignone, founder of the CELS, was a peronist and disapproved of amne (...)
  • 11 Cámara Federal en lo criminal y correccional de la Capital Federal, Emilio Mignone s/ presentación (...)
  • 12 Cámara Federal en lo criminal y correccional de la Capital Federal, Emilio Mignone s/ presentación (...)

8From there on, two trends started emerging regarding the nature of the investigation. On one hand, a few scholars started to view the subsequent proliferation of truth commissions in the Americas – in Chile, El Salvador, Haiti and Guatemala – as contributions to an emerging “right to truth” owed to victims and societies on the broad historical circumstances of past abuse as part of extra-judicial efforts to acknowledge state responsibility (Hayner, 1994, 611; Pasqualucci, 1994, 329-331). The 1994 South African Truth and Reconciliation Commission, mandated to grant individualized and conditional amnesties, represented a turning point in that following the overall idealization of its truth in exchange of amnesty model, the popularity of truth commissions accompanying amnesty processes increased (Mallinder, 2008, 168), while its supporters began to value truth commissions over criminal justice (see Rotberg, Thompson, 2000). On the other hand, mobilizations for the “right to truth” took another direction in Argentina, and later on in the Inter-American system, where former left-wing activists supporting prosecutions sought to frame differently demands for retributive justice to avoid being stigmatized as radical or peace-threatening10. To this end, the human rights NGO Centro de Estudios Legales y Sociales, supported by Juan Méndez from Human Rights Watch/Americas, petitioned courts to enforce a “right to truth” supportively independent of criminal sanction, but nevertheless enforced through criminal investigations11. Following the Velasquez-Rodriguez v. Honduras precedent at the Inter-American Court of human rights (IACtHR), petitioners in the Mignone and Lapaco cases argued that although amnesty laws prevented perpetrators to be prosecuted, the “right to truth” of families and society remained a sufficient rationale to reopen criminal investigations into the fate of all the disappeared and to document State terrorism12. Thus, the “right to truth” envisioned was however more ambivalent towards punishment than the protagonists later admitted: although they pretended amnesties were not challenged, their insistence on an individualized judicial truth, obtained through criminal investigations, including on the identity of perpetrators (HRW-CJIL, 1995, § 2), suggests a punitive agenda in collecting criminal evidence against State agents (Naftali, 2014). Similar petitions were lodged by the Asamblea Permanente por los Derechos Humanos (APDH), another Argentine NGO which assumed more openly its interest in collecting criminal evidence against perpetrators in the light of developments of universal jurisdiction with the Pinochet case (Roth-Arriaza, 2006, 105). Amnesty International (AI, 1996, 1) and Human Rights Watch (HRW, 1989, 3; HRW, 1991, 59-60) have similarly rejected amnesties for impeding on the “right to truth” of victims.

9The “right to truth” about past state crimes thus came to aggregate both supporters of restorative justice and advocates of prosecutions to become the cornerstone of the fight against impunity, as illustrated by Louis Joinet’s Set of Principles to Combat Impunity (1997).

3) The Global Institutionalization of Truth-Seeking Practices

10The “right to truth” is not only the result of an intense legalization of human rights, but also of the legalization of different fields that have vested interests in being embedded in international law. Since 2001, new expert mobilizations have also become global promoters of a “right to truth” to facilitate the institutionalization of truth-finding practices at the international level, and their concomitant professionalization as distinct fields within human rights and international law. The rise of the “right to truth” thus also coincides with the emergence of new professional organizations because it supports their broader professional claims and assumptions about the transformative impact of their knowledge and practices on societies and victims in the aftermath of mass atrocities.

11The evolution of the field of transitional justice as an international professional practice (Lefranc, Vairel, 2014; Subotic, 2012) is one example. It can be mainly attributed to the International Center for Transitional Justice (ICTJ), the first NGO specifically created to disseminate transitional justice mechanisms and “distil best practices so that future truth and memory initiatives can benefit from past experience”13. Founded in 2001 by former members of the South African Truth and Reconciliation Commission and Priscilla Hayner, the organization actively promotes truth commissions (TRCs) worldwide and currently assists twelve countries, advising local and international decision-makers, civil society and the UN. Since its creation, ICTJ has successfully lobbied the UN to institutionalize “transitional justice” as a distinct field of practice associated with a particular knowledge on the transformation of conflict-ridden States. In particular, it led the UN to officially endorse TRCs as a generic post-conflict tool of transition, as illustrated by the 2004 Secretary General’s Report The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (UN-SG, 2004, §50) and the 2006 report of the High Commissioner on Human Rights Rule-of-Law Tools for Post-Conflict States: Truth Commissions (UN-OHCR, 2006b), both shaped by ICTJ asserting that in 2004, the UN Secretary General’s report on the rule of law and transitional justice came out. It was a very rich report and a groundbreaking one, and everyone knew that ICTJ had been quite influential in shaping it behind the scenes (ICTJ, 2011, vi).

12From this standpoint, the development of the “right to truth” within UN instruments represents a resource to further ground truth commissions in international law and shift justifications for transitional justice mechanisms from political and moral arguments to legal ones. As announced on its website, ICTJ’s Truth and Memory program seeks to advance the right to truth, and provides support and advice to truth and memory initiatives worldwide14. For instance, ICTJ has provided input to the UN Principles to Combat Impunity, updated by Diane Orentlicher in 2004 to include new legal developments since Joinet’s report (Orentlicher, 2004; UN-CHR, 2005)15. The societal dimension of the “right to truth” is promoted as a way for societies to know the truth about the history of past violation, avoid repetition of crimes, give voice to victims and “heal” them, educate societies and restore the rule of law. More generally, ICTJ presses for the development of the “right to truth” through amicus curiae briefs (e.g. ICTJ, 2005; ICJT, 2006), press releases (e.g. ICTJ, 2005a), reports submitted in the context of UN human rights mechanisms (e.g. ICTJ, 2008). Under the heading “Knowing the Truth is a Right”, ICTJ website notes that International law continues to develop in this area and on the concept of a society’s right to the truth. The refoundation of transitional justice in international law has proved successful, as the creation of TRCs is now presented as mandated by international law and among UN’s favourite options to uphold the “right to truth” (UN-SG, 2010, 4; UN-OHCR, 2011a, 90). The “right to truth” thus acts as a bridge between international law and transitional justice truth-seeking practices, thereby contributing to normalize the field of transitional justice, which in turn contributes to normalize the “right to truth”.

13Another example is the rise of the field of forensic anthropology within human rights. Forensic experts conduct autopsies, exhume mass graves and identify human remains through DNA techniques (Klinker, 2009). The concept of “forensic truth” has been used as a specific category in truth commissions’ reports, as in South Africa (TRCSA, 1998, 111). However, in recent years, forensic experts not only expressly associate their work with the fulfilment of the “right to truth” of families of victims, but also advocate for the development of this concept as a right to a “scientific truth” into the identity and cause of death of victims. For instance, the Argentine Forensic Anthropology Team (EAAF), a pioneer NGO in the exhumation of mass graves worldwide, promotes its “right to truth” advocacy work as follows: EAAF currently supports a number of recommendations on the right to truth, particularly the right to a proper and independent investigation, including the implementation of all possible forensic procedures and analyses to identify remains and provide information about the cause and manner of death (2003, 128-135). Formed by Clyde Snow in 1986, this NGO has conducted missions in more than thirty countries including Bosnia, East Timor, Sierra Leone and South Africa. It has initiated and trained other similar teams elsewhere, such as in Chile, Guatemala and Peru, resulting in a Latin American regional professional network in 2003.

14Similarly, forensic associations participated in the ICRC international conference “The Missing and Their Families: The Right to Know”, which campaigned for the use of forensic techniques in relation to the “right to truth” (ICRC, 2003). EAAF, International Service for Human Rights and the ICRC also took part in sessions of the UN Drafting Group of the ICED to promote the use of international standards applicable to forensic techniques for the identification of remains (ICED-DG, 2004a). However, if Article 24(3) ultimately provides in the final ICED the obligation to take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, locate, respect and return their remains, it doesn’t explicitly mention forensic techniques.

15But why have these originally non-legal actors invested the legal terrain? Generally, the lexicon of the “right to truth” has a particular appeal as it serves each of claims of the field of forensic anthropology, which Claire Moon analyses as scientific, probative, humanitarian, historical, political and deterrent (2013, 157). For instance, forensic investigations seek to provide definite answers to family survivors about the fate of their next-of-kin, in order to alleviate their suffering and facilitate their grief and closure. The recovery of human remains allows families to properly bury the deceased, and would facilitate their right to mourn the dead. Finally, forensic experts have provided expert witness and evidentiary material for truth commissions and trials involving gross human rights violations, which have been used as evidence of patterns of State crimes or against individuals (Klinkner, 2008), thereby claiming to deter historical revisionism and repetition of abuse. In this context, the “right to truth” is used as an anchor between the fields of medicine, forensic knowledge, human rights and transitional justice. This convergence of goals explains why these experts advocate a “right to truth” before international fora and human rights bodies.

16More particularly, the promotion of a “right to truth” vested in international law consolidates efforts of forensic experts to bolster their authority and the scientific objectivity of their methods through international standards of investigation (Cordner, McKelvie, 2002) and the use of specialized, international experts in national proceedings. The 2010 OHCHR Report on the Right to the Truth and on Forensic Genetics and Human Rights, to which the International Commission on Missing Persons contributed, illustrates how forensic genetics now feature as a way to uphold the “right to truth” by identifying victims of serious violations of human rights and international humanitarian law (UN-OHCR, 2010a, §63). It urges the harmonization and development of international standards to improve national forensic practices, criticized for their incompetence, lack of independence with State authorities, or outdated equipment and technologies. In this respect, “the right to truth” offers the advantage of conjoining the language of legal positivism, human rights and science.

4) The Fight for a General Right to Information and Transparency

17More recently, NGOs specialized in issues of freedom of information and expression, declassification and more transparent democracies have also intensified litigation for international courts to advocate for a general free-standing “right to truth” applicable in any context, beyond State crimes. For instance, Article 19 and George Soros’ Open Society Justice Initiative (OSJI) promote a right of general access to government-held information, construed as a positive state duty to provide access to its archives, irrespective of the existence of any specific legislation (OSJI, 2006). OSJI strategic litigation in fighting abuses of State secrecy and national security, presses for an individual and collective “right to truth” arising from the right to freedom of expression before the Inter-American (OSJI, 2012, §15) and European Courts of human rights (OSJI, 2013) in order to limit refusals to disclose documents based on State secret exceptions. More generally, OSJI has developed a particular interest in promoting a state duty to ensure public access to archives under the “right to truth”, contributing to this effect to the Updated Principles to Combat Impunity (Orentlicher, 2004). This vision is also institutionalized by UN bodies (UN-OHCHR, 2009, §6; UN-OHCHR, 2010b; UN-OHCHR, 2011b).

18To sum up, I have argued that the “right to truth” is a cornerstone for several mobilizations in international law which have superseded each other over time to contemplate different conceptions of “truth”. This concept emerges at the intersection of coterminous mobilizations driven by different logics: humanitarian organizations, human rights activists, but also direct victims’ mobilizations for the lives of their relatives disappeared, focused on prevention, as well as expert mobilizations on the deaths of victims of atrocities, focused on reparation. The effects of these mobilizations are also tangible on international law, as the concept has acted as a field connector between legal and non-legal regimes, international humanitarian and human rights law, transitional justice, and finally, forensic medicine. However, I have shown that the normalization of the “right to truth” results from the cumulative effect of these mobilizations, rather than the promotion of a common vision about what the “right to truth” ought to mean and imply. Although these overlapping mobilizations for the “right to truth” have thus been globally mutually reinforcing, as the circulation of this notion illustrate, they may also prove mutually undermining, as further discussed.

II - The “Right to Truth” as a Constraint for Truth Activists?

19Is it possible for all meanings of truth to cohabit within the same legal category? The institutionalization of a polysemic definition of the “right to truth” in UN human rights bodies seems to suggest so (UN-HRC, 2006, 9/11 Resolution). However, this polysemy also reflects truth activists’ struggles to reach consensus on the definition of the “right to truth”, beyond the consensus for its normalization. Therefore, attention should also be paid to tensions arising from these heterogeneous mobilizations, when it comes to negotiate the concrete parameters of this concept. This part thus explores how the ambivalence of the concept becomes a constraint for truth activists as they contest competing conceptions of the “right to truth” or try to accommodate tensions through legal artefacts. Although a comprehensive approach between all representations of “truth” is promoted in legal texts, the concrete interplay between them may raise difficulties for particular causes advocated under the “right to truth”, especially for proponents of a punitive approach. How do truth activists navigate these constraints as they negotiate the contours of the “right to truth”? In particular, areas of conflict between supporters of retributive justice and other truth promoters include politics focused on the identification of victims of State violence, the admissibility of amnesties and finally, the interrelationship between truth commissions and criminal justice. On these issues, the negotiations of the ICED between 2001 and 2005 represented a turning point for the inclusion of the “right to truth” in a universal legally-binding instrument, as the Drafting Group included most historic promoters of the “right to truth”, and consequently came to negotiate all interpretations of the “right to truth”, as discussed further below.

1) Negotiating Families’ Priorities: The Identity of Victims, Between Politics of Grieving and Families’ Right to Mourn the Dead

20The first area of tension concerns the interplay between mobilizations focused on the identity of victims and those focused on the identity of perpetrators. While they don’t necessarily exclude each other, the general promotion of non-judicial investigations, such as humanitarian, forensic and truth commissions mechanisms, may underserve the fight of victims’ associations for criminal accountability insofar as their primarily humanitarian mandate values families’ right to know the fate of the disappeared over their right to know the identity of perpetrators. For instance, the apolitical mandate of the ICRC explains why it doesn’t focus on the identity of perpetrators and why its position on amnesties remains ambiguous (Pfanner, 2006). The marginalization of judicial mechanisms was also suggested in experts’ recommendations at the ICRC conference “The Missing and Their Families: The Right to Know”, held in 2003 to inform parallel negotiations on the drafting of the ICED, as follows: All families need information on the fate of missing relatives; this need is universal. Their needs for accountability and acknowledgement may differ, however, with the context and situation (…) The needs for accountability and acknowledgment should be dealt with in parallel with the need for information; however they may not necessarily be met by formal judicial procedures (ICRC, 2003b, 14).

21Although the principles suggest comprehensive strategies to respond to families’ needs, a hierarchy among visions of “truth” is clearly implied between the right to know the fate of the disappeared and demands for criminal accountability. This hierarchy is further exacerbated by the promotion of amnesty and leniency laws, alongside truth commissions, in exchange for truth: Measures such as laws of amnesty, truth commissions or legislation introducing less severe punishment or granting physical protection to perpetrators can prove helpful, provided they make a substantial contribution to establishing the truth (ICRC, 2003b, 15).

22Similarly, in the context of negotiating the ICED, the promotion of all types of investigation under the “right to truth” by truth entrepreneurs has inevitably led to downplay explicit demands for criminal investigations, resulting in a silence as to the nature and content of the investigation required. While some participants insisted on the paramount importance of investigations for punishment (ICED-DG, 2003a, 22), HRW, AI, ICJ and the International Federation of Human Rights Leagues (IFHR), eager to promote NGOs fact-finding missions, argued that investigations should not be limited to those carried by judicial bodies as investigations for purely humanitarian purpose, truth-seeking or geared towards civil law are equally necessary (Ibid.). This stance was paradoxical insofar as they equally defended the prohibition of amnesties and the “right to justice” (on this notion, see Seibert-Fohr, 2009) of families of disappeared during the negotiations, as discussed further below. In addition, when the Uruguayan delegation suggested to include the identity of perpetrators as a core element of the “right to truth” in the preamble, it was urged to rather issue an interpretative declaration to avoid destabilizing the compromise reached on a vague reference to the “right to truth” (ICED-DG, 2005). If Article 24(2) of the ICED will eventually recognize a “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”, it deliberately remained ambiguous regarding the extent of the “circumstances” – especially in relation to the identity of the perpetrators – and the nature of the “investigation”.

23However, while families’ priority on the right to know the fate of the disappeared is unquestionable in its preventive aspect, as expressed in FEDEFAM’s motto They took them alive, bring them back alive, it remains controversial regarding its reparation aspect. FEDEFAM representatives confirmed this during negotiations of the ICED (ICED-DG, 2003b, 13). In fact, politics of truth focused on the identity of the victims, rather than the identity of perpetrators, commonly play against supporters of a punitive “right to truth”, as exhumations within criminal justice settings remain marginal. For this reason, victims’ associations have opposed exhumations disconnected from criminal justice. The case of the Madres de Plaza de Mayo in Argentina shows the disabling effect of forensic truths on victims’ mobilizations, causing the association to split in 1986. One side supported Alfonsin’s politics of exhumations to allow the bereavement of families, provide judicial evidence and a historical documentation on crimes. The other rejected exhumations, as expressed in the statement: We don’t want the names of the victims. We know who they are. We want the names of the murderers (quoted by Fisher, 1989, 128). Hebe de Bonafini’s faction criticized Alfonsin’s recourse to forensic experts as taking place within politics of impunity, which value the “right to truth” on the identity of victims, rather than the identities of the persons responsible for the disappearance. They regarded exhumations as a dividing strategy to individualize loss, dissociate victims’ relatives and encourage them to terminate their struggle for retribution. One of the Madres expressed these concerns as follows:

The exhumations were another part of the government’s strategy. It’s very difficult for a mother who has received the remains of her child to go on fighting (…) The bones don’t interest us. What are we going to do with the bones? To receive the bodies before knowing who is responsible is a form of punto final all the more injust when you consider how many mothers will never receive the bodies – all those who were thrown into the sea by the navy and air force, dynamited, incinerated, who are never going to be found. Exhumations have nothing to do with justice (Ibid., 129).

24The right to a decent burial, claimed by the Madres under the dictatorship, is here rejected as exhumations were seen as a way to encourage mothers to focus on personal loss rather than to keep fighting collectively for the prosecution of perpetrators. According to one of the Madres, this strategy allowed the government to disclaim any past responsibility of state agents in the deaths of the disappeared: We don’t want to assume responsibility for their deaths ourselves. We want them to say who killed them (…) The exhumations don’t tell us anything we don’t already know (…) We don’t agree with the exhumation of the bodies. With the exhumations they want to eradicate the problem of the disappearances, because then there are no more desaparecidos, only dead people (Ibid., 128-129).

25These Madres thus considered forensic procedures as amounting to death certificates which enabled to sidestep the issue of State responsibility in committing disappearances. As Claire Moon writes, the Madres contested the political framework of exhumations and wanted instead to shift the focus away from reparation to victims and towards the punishment of perpetrators (2013, 164). This example shows that when forensic procedures are disconnected from prosecutorial contexts, they may play into schemes of politics of remembrance and commemoration for surviving victims, to the detriment of criminal accountability. In this sense, forensic truths are not neutral and inevitably take place within larger politics of the past from post-conflict governments (Ibid.), such as politics of grieving.

2) Negotiating Amnesties: The “Right to Truth” as a Bar or License to Amnesties?

  • 16 See IACtHR, Barrios Altos v. Peru, Judgment on Merits, (March 14, 2001), § 43; Almonacid Arellano e (...)

26The second area of tension relates to the relationship between the “right to truth” and amnesties. As seen earlier, the fight against impunity opened up several avenues for the development of the “right to truth”, which has oscillated between leniency and punishment. Truth mobilizations reveal ambivalent stances regarding amnesties, ranging from their absolute repudiation to their conditional or unconditional legitimation. While the “right to truth” is used as a bar to amnesties at the IACtHR16, it has been equally used as a license to allow them in other legal arenas, as the next two examples illustrate.

2.1. Negotiating the Prohibition or Admissibility of Amnesties in the ICED

27The first example of tensions underlying mobilizations of the “right to truth” is provided by the debates on the issue of amnesties and other measures of clemency held within the Drafting Group of the ICED. A close scrutiny of mobilizations of the “right to truth” in the preliminary documents of the ICED reveals that the concept first appears in the drafts and oral debates as a trade-off between supporters of the explicit prohibition of amnesties in the treaty and those who supported their use.

  • 17 Ordonnance portant mise en œuvre de la Charte pour la paix et la réconciliation nationale, Journal (...)

28Article 18(1) of the Declaration against enforced disappearances, adopted by the UN General Assembly in 1992, provides that authors of enforced disappearances “shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction” (UN-GA, 1992). On one hand, many historic promoters of the “right to truth” saw the drafting of the Convention against enforced disappearances as a historic opportunity to transform this non-binding provision into a binding obligation. Consequently, they sought to explicitly prohibit the use of amnesties for authors of enforced disappearances. On the other hand, however, the US, Algerian and South African delegations sought to move away from the standard set in Article 18(1) and prompted uses of the “right to truth” to justify amnesties or measures of leniency for the benefit of alleged perpetrators (ICED-DG, 2003a, 15). They sought to protect the interests of repentant perpetrators who “confess” the truth, granting them a right to obtain reduced sentences or to be exempted from any trial. For instance, the US delegation encouraged the use of privileges and immunities for those who “agree to reveal useful information to the establishment of truth” in the course of trials (ICED-DG, 2003b, 33). It further defended the possibility of mitigating circumstances of the penalty when authors contribute to find back the victim (Ibid.). The negotiations coincided with the CIA program on extraordinary renditions in the context of the post 9/11 “War on Terror”, resulting in thousands of disappearances of persons presumably related to Al-Qaïda. The Algerian delegation also supported amnesties in the name of reconciliation (Ibid., 34), at a time when Bouteflika contemplated a Charter for Peace and Reconciliation granting blanket amnesties for combatants of the 1990s civil war17, amidst fierce opposition from local associations of families of disappeared (Dutour, 2008, 147). Finally, the South African delegation was concerned to defend the legacy of its post-apartheid model of “truth in exchange of amnesties” inaugurated by its TRC in 1994, which was followed by few prosecutions, adding de facto amnesties to the conditional and individualized ones granted by the TRC.

29On the contrary, associations of families of disappeared like FEDEFAM and human rights NGOs, including the ICJ and HRW, envisioned a “right to truth” subsumed within the right to justice that necessarily entailed the prohibition of amnesties (ICED-DG, 2003b, 30; ICED-DG, 2003a, 15). Following these debates, the second draft suggested a third option that sought to reconcile amnesties and the “right to truth” as follows:

Each State party will ensure that any measures of pardon, amnesty and other similar measures that can benefit authors or persons suspected of having committed an enforced disappearance, will not have the effect of preventing the exercize of an effective remedy to obtain reparation. In particular, the right to obtain accurate and comprehensive information on the fate of the disappeared is ensured in all circumstances (ICED-DG, 2003c, 4).

30This provision, backed by the US, Algerian and South African delegates (ICED-DG, 2003b, 34), thus presented the “right to truth” within the “right to reparation” as a compromise between supporters and opponents to the explicit prohibition of amnesties. On one hand, conditional amnesties allowed to guarantee the victims’ rights to truth on the fate of the disappeared. On the other hand, this provision was more permissive than the UNGA Declaration, as perpetrators might be amnestied without previously undergoing criminal prosecutions or sanctions. FEDEFAM rejected this proposal, declaring “it might encourage impunity rather than combating it”, and asked to remove the reference to amnesty (ICED-DG, 2003a, 15; ICED-DG, 2004b, 53), alongside human rights NGOs and Latin American delegates (ICED-DG, 2004b, 18-19). The latter further contested the positive impact of amnesties on reconciliation based on their countries’ experiences (ICED-DG, 2004c, 2; ICED-DG, 2004d, 4), pleading that “criminal trials greatly contribute to reconciliation”, whereas the experience of the region showed that “truth and reconciliation commissions didn’t guarantee the victims’ right to truth, which has led to violence” (ICED-DG, 2004b, 54). The proposal will be denounced by the families and human rights NGOs in a press release which

urged States participating in the Working Group to exercise vigilance to ensure that the future instrument does not allow for amnesties for persons responsible for enforced disappearance that exempt them from any prosecution or criminal sanction. This instrument would otherwise represent a weakening of international law and an affront to the victims, for whom the right to justice is as important as the right to truth and the right to reparation (FEDEFAM et al., 2004).

31The trade-off between the “right to justice” and the rights to truth and reparation is clearly attacked. Given the stalemate in the debates, participants eventually agreed to remove all reference to amnesty from the draft as a fall-back solution (ICED-DG, 2004d, 2; ICED-DG, 2004e, 52-53). This example thus illustrates ambivalent uses of the “right to truth” and shows that competing conceptions of the “right to truth” in relation to amnesties have led to their mutual neutralization, as both camps abandoned their initial vindication related to amnesties. Instead of allowing or prohibiting amnesties, the Convention ultimately ended with a silence on the matter.

2.2. The “Right to Truth” as the Barometer of the (Il)Legality of Amnesties

32In 2005, shortly after the final text of the ICED was adopted, the UN Working Group on Enforced or Involuntary Disappearances (WGEID), which monitors States compliance with the 1992 UNGA Declaration, tried to reconcile antagonist positions on amnesties expressed within the Drafting Group of the Convention, while furthering the UN institutionalisation of the “right to truth”. The General Comment on “Disappearance, Amnesty and Impunity”, intended to provide an interpretative guideline to Article 18(1) of the UNGA Declaration, further illustrates the tensions mentioned earlier as the “right to truth” is paradoxically both used to validate and to invalidate amnesties (WGEID, 2005). On the one hand, it mobilizes “the right to truth” to proclaim amnesties incompatible with the Declaration if, inter alia, they lead to concealing the names of the perpetrators of disappearance, thereby violating the right to truth and information (Ibid. §49, §2, c). However, on the other hand, the WGEID allow amnesty and clemency measures when States consider it necessary to enact laws aimed to elucidate the truth and to terminate the practice of enforced disappearance (WGEID, 2010, §8). This is justified on the grounds that legislative measures that could lead to finding the truth and reconciliation through pardon might be the only option to terminate or prevent disappearances (Ibid., §5). The WGEID stance on amnesties thus illustrates the ambivalence of truth entrepreneurs in relation to amnesties as the “right to truth” is used to justify conditional and individualized amnesties. Following the negotiations of the ICED, other tensions have continued to affect the elaboration of the “right to truth” within UN human rights bodies.

3) Negotiating the Interrelationship between Truth Commissions and Criminal Justice

33The third example of tensions underlying competing mobilizations of the “right to truth” is illustrated by the diverging contents of the concept proposed by supporters of truth commissions and advocates of criminal courts before UN human rights bodies. Although the Commission on Human Rights eventually recognized both truth commissions and tribunals as complementary institutions to enforce the “right to truth” in 2005 (UN-CHR, 2005a), supporters of each mechanism have had to negotiate the contours and nature of the “right to truth” accordingly, as the promotion of an individualized, judicial truth generally conflicts with the promotion of a collective truth owed to societies on two issues.

34The first one is whether to view the identity of perpetrators of gross violations as a core or marginal element of the “right to truth” content. The 2006 OHCHR reports related to the “right to truth” are emblematic of this divergence: as they originate from truth advocates pursuing different interests, they don’t defend the same contours of the “right to truth”. On one hand, the report entitled Rule of Law Tools for Post-Conflict States: Truth Commissions, expressly dedicated to institutionalize truth commissions as tools of transition, was mostly shaped by Priscilla Hayner for the ICTJ. It argues that there are legitimate reasons why a commission may choose not to name the wrongdoers or to name only those most responsible or most senior in the chain of command (UN-OHCHR, 2006b, 22) and concludes that to allow flexibility, the best practice is for a truth commission’s terms of reference to allow but not require the identification of perpetrators, leaving the matter to the discretion of the commission. On the other hand, the Study on the Right to Truth, the first UN comprehensive legal study of the concept in international law, tries to further drag this right within the “right to justice” as it primarily defends a judicial truth enforced through criminal courts (UN-OHCHR, 2006a). It was officiously authored by Federico Andreu-Guzmán, the ICJ representative who previously advocated this representation of a “right to truth” to urge the prosecution of authors of gross violations, at the Inter-American Court of Human Rights (see ICJ, 2001, §54-56, §62-63) and during the ICED drafting when he produced an aide mémoire on the right to know and enforced disappearance which circulated during the first sessions of the ICED Drafting Group. Consequently, the “right to truth” is defined as implying: (…) knowing the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them (UN-OHCHR, 2006a, §3).

  • 18 For the IACtHR, see e.g., “Mapiripán Massacre” v. Colombia Judgment (September 15, 2005), § 236, 29 (...)
  • 19 Ibid., § 32.

35It thus departs from the ambiguity of the ICED on whether knowing the “circumstances of the disappearance” also encompassed the identity of perpetrators. Moreover, the study seems to marginalize TRCs compared with criminal procedures to uphold the “right to truth” (Ibid., §47-48, §61. See also UN-CHR, 2005a; UN-HRC, 2006, 9/11 Resolution). For instance, it asserts that experiences show they are frequently subject to greater constraints (UN-OHCHR, 2006a, §50) than courts and omits the former under the analysis of the collective dimension of the “right to truth” (Ibid., §36). More generally, this approach is followed by international criminal justice practitioners who increasingly vindicate a role as enforcers of the “right to truth”, including in its collective dimension (see e.g. Groome, 2010). Both ICC and IACtHR actors stress the determination of guilt as a paramount element of the “right to truth”18. For instance, some ICC pre-trial judges have expanded victims’ participatory rights at the pre-trial stage, during proceedings aimed at determining the guilt of indictees, on the grounds that the victims’ core interest in the determination of the facts, the identification of those responsible and the declaration of their responsibility is at the root of the well-established right to the truth for the victims of serious violations of human rights19.

36The second issue, which is a consequence of the first divergence, concerns competing visions on the absolute or derogable nature of the “right to truth”. For instance, Guzman’s study pleads for an absolute right, asserting that amnesties or similar measures (…) must never be used to limit, deny or impair the right to the truth (UN-OHCHR, 2006a, §60). In contrast, the WGEID adopts an in-between position and draws a distinction between the fate of the victim and his/her whereabouts, raised as a non-derogable element, and relative ones, to conclude:

The right to know the truth about the circumstances of the disappearance, in contrast, is not absolute. State practice indicates that, in some cases, hiding parts of the truth has been chosen to facilitate reconciliation. In particular, the issue whether the names of the perpetrators should be released as a consequence of the right to know the truth is still controversial (WGEID, 2010, §8).

37Referring specifically to TRC processes, the experts deny that this limitation on the “right to truth” affect the “right to justice”, under the motive that the decision not to publicly name alleged authors of gross abuse does not prevent prosecutions. However, paradoxically, they simultaneously admit that the realization of the right to the truth may in exceptional circumstances result in limiting the right to justice (Ibid., §7), within the limits already mentioned for amnesties. This example further illustrates how truth activists navigate the constraints of competing visions of the “right to truth” and how jurists adjudicate these tensions through the creation of hierarchies regarding the content, nature and official modes of implementation of the “right to truth”.

38Beyond the discourse on complementarity between truth regimes – whether factual, forensic, historical or judicial –, truth entrepreneurs thus paradoxically continue to hold preferences for courts or other truth-seeking mechanisms as responses to the fight against impunity, which explains their ambiguity and disalignment on certain debates. The discourse on complementarity thus overshadows conflicts between truth entrepreneurs which are ultimately reflected in the legal construction of the “right to truth”.

Conclusions

39As UN bodies and experts increasingly herald the healing virtues of the “right to truth” for victims and societies (UN-SG, 2011; UN-HRC, 2013, §20, §90), it is useful to shed light on the plurality of causes fought under this concept and the tensions between various truth promoters in the course of its formalization in international law. This paper has highlighted continuities and discontinuities between mobilizations for a “right to truth” in international law. It has argued that although diverse mobilizations have coalesced around the idea of a “right to truth” as a resource to reform international law, the competition around its parameters has also acted as a constraint for certain truth activists. Given the diversity of interests at play, the institutionalization process of the “right to truth” before various bodies reveals strategies of alignment and disalignment among truth entrepreneurs that may reinforce or undermine each other’s cause. Although all these visions of the “right to truth” are presently celebrated as “complementary”, the advent of this multifaceted legal category thus conceals a range of conflicts around conceptions of truths and more generally, the social and political priorities given to the treatment of mass atrocities. At a time when the “right to truth” increasingly becomes an object of legal fetishism and an institutional symbol, as illustrated by the recent UN creation of both a special rapporteur position (UN-HRC, 2011) and an “International Right to Truth Day” (UN-GA, 2010), a focus on the unexpected outcomes of competing truth mobilizations deserves attention. For this reason, both the competition and the contingence of its uses and re-appropriations according to power relations should be acknowledged as the “right to truth” will continue to inspire an infinite number of cause entrepreneurs in their attempts to further challenge the limits and boundaries of international law.

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Notes

1 See e.g., Inter-American Court of Human Rights, Bámaca-Velásquez v. Guatemala, Judgment on Merits (November 25, 2000), § 201; International Criminal Court (Pre-Trial Chamber I), Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (DRC), ICC-01/04-01/07 (May 13, 2008), § 31-36; European Court of Human Rights (GC), El-Masri v. The former Yugoslav Republic of Macedonia (December 13, 2012), § 191.

2 La Nación, October 5, 1977; online, URL [http://www.memoriaabierta.org.ar/materiales/solicitada1977.php]. All internet references were last consulted on January 5, 2015 and all translations from Spanish or French are personal.

3 See e.g., Declaration of Principles in the Statutes of the Association Madres de Plaza de Mayo (August 22, 1979), La Plata.

4 FEDEFAM was also instrumental to the adoption of the 1992 UN Declaration and the 1994 Inter-American Convention on Forced Disappearance of Persons, alongside other human rights NGOs. See Brody, González, 1997.

5 Article 2 of Proyecto de Convención Internacional sobre Desaparecimiento Forzado Elaborado por la Federación Latinoamericana de Asociaciones de Familiares de Detenidos-Desaparecidos, in GICIDF, 1987, 343.

6 GA Res. 61/177, UN Doc. A/RES/61/177 (December 20, 2006), entered into force on December 23, 2010.

7 See also the preambles of CHR and HRC resolutions.

8 On the right to know, see generally Crettol, La Rosa, 2006.

9 Article 6(5) of Protocol Additional to the Geneva Conventions (August 12, 1949), and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609 (June 8, 1977).

10 One of the petitioners, Emilio Mignone, founder of the CELS, was a peronist and disapproved of amnesties. See Guest, 1990, 16.

11 Cámara Federal en lo criminal y correccional de la Capital Federal, Emilio Mignone s/ presentación en la causa 761 "Hechos denunciados como ocurridos en el ámbito de la Escuela Superior de Mecánica de la Armada", reg. n°3/95 (20 April 1995), II, § 2.

12 Cámara Federal en lo criminal y correccional de la Capital Federal, Emilio Mignone s/ presentación en la causa 761 "Hechos denunciados como ocurridos en el ámbito de la Escuela Superior de Mecánica de la Armada", reg. n°3/95 (20 April 1995), II, § 2. For an official account of the motives and purposes of the CELS from the perspective of one of its members, see Abregú, 1996.

13 See [http://ictj.org/our-work/transitional-justice-issues/truth-and-memory].

14 Visit e.g. [http://ictj.org/our-work/transitional-justice-issues/truth-and-memory].

15 See also ICTJ [http://www.ictj.org/our-work/policy-relations].

16 See IACtHR, Barrios Altos v. Peru, Judgment on Merits, (March 14, 2001), § 43; Almonacid Arellano et al. v. Chile (September 26, 2006); Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil (November 24, 2010; Gelman v. Uruguay (February 24, 2011).

17 Ordonnance portant mise en œuvre de la Charte pour la paix et la réconciliation nationale, Journal Officiel de la République algérienne, n° 11 (February 28, 2006), Articles 4-9 of Section 2.

18 For the IACtHR, see e.g., “Mapiripán Massacre” v. Colombia Judgment (September 15, 2005), § 236, 299; ICC Pre-Trial Chamber I, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (DRC), ICC-01/04-01/07 (May 13, 2008), § 31-36.

19 Ibid., § 32.

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Patricia Naftali, « Crafting a “Right to Truth” in International Law: Converging Mobilizations, Diverging Agendas? », Champ pénal/Penal field [En ligne], Vol. XIII | 2016, mis en ligne le 12 février 2016, consulté le 28 juillet 2016. URL : http://champpenal.revues.org/9245 ; DOI : 10.4000/champpenal.9245

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Patricia Naftali

F.R.S.-Fonds National de la Recherche Scientifique (FNRS), Université libre de Bruxelles (ULB), Centre for Public Law/Centre for International Law. Contact : pnaftali@ulb.ac.be

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