HUMAN RIGHTS COUNCIL HOLDS PANEL DISCUSSION ON RIGHT TO TRUTH
The Human Rights Council this afternoon held a panel discussion on the right to truth.
United Nations High Commissioner for Human Rights Navi Pillay, introducing the panel discussion, said while the right to truth had initially been linked to cases of the missing and disappeared persons, it had extended to other gross violations of human rights, such as extrajudicial executions and torture. It implied knowing the full and complete truth about events, which had transpired, their specific circumstances, and who had participated in them. In cases of enforced disappearance and missing persons, it implied knowing the fate and whereabouts of the victim. The right to the truth might be considered as an autonomous right that warranted effective implementation.
The panellists were Olivier de Frouville, Member of the Working Group on Enforced or Involuntary Disappearances; Rodolfo Mattarollo, International Law Advisor, Ministry of Justice, Security and Human Rights of Argentina; Yasmin Sooka, Executive Director of the Foundation for Human Rights in South Africa; and Dermot Groome, Senior Trial Attorney, International Criminal Tribunal for the former Yugoslavia.
Olivier de Frouville, Member of the Working Group on Enforced or Involuntary Disappearances, said there could be no doubt that the right to truth was a right that was both individual and collective. The right to truth was an emerging right in international law, based on the actual practice of States, where there were very different experiences, which showed that it could not be considered an absolute right. The measures to be taken to implement the right to truth had to be national.
Rodolfo Mattarollo, International Law Advisor, Ministry of Justice, Security and Human Rights of Argentina, said society had the right to know the truth in cases of torture and summary executions. It was both an autonomous right and a specific right. The right to truth merited the real attention of international human rights institutions and non-governmental organizations. Forensic science was also part of the right to truth.
Yasmin Sooka, Executive Director of the Foundation for Human Rights in South Africa, said the right to the truth was a fundamental emerging principle of international human rights law and central to the struggle of transition to democracy, and against impunity and the legacy of massive human rights violations. In terms of structures, the role that national human rights institutions could play was critical because truth commissions usually had a short lifespan.
Dermot Groome, Senior Trial Attorney, International Criminal Tribunal for the former Yugoslavia, had three observations: the important contribution the Human Rights Chamber of Bosnia and Herzegovina had made to the right to truth; the relationship of international criminal law to that right; and the synergies between international human rights law and international criminal law due in part to the right to truth. As the right to truth continued to evolve as a concept in international law, international humanitarian law and international criminal law was all focused towards one aim: eradicating impunity.
During the discussion, speakers underscored that the right to truth was important both within international and national laws. It also stood as an autonomous right globally and regionally. States also recognized that the right to truth had become fundamental in the fight against impunity, particularly in cases of gross human rights violations and serious breaches of international humanitarian law. Some speakers said that the International Convention for the Protection of All Persons from Enforced Disappearance constituted a great step forward towards ensuring the right to truth. Others argued that the right to truth was shaped in the International Convention on the Protection of All Persons against Enforced Disappearances, and belonged to society as a whole. Several speakers felt that the right to truth was the right to know the fate of the disappeared and of the victims of human rights violations, the reasons why they disappeared, who was responsible, and how the latter were punished. In some countries the right to truth had been an essential element in building democratic systems. A considerable number of speakers agreed that the right to truth was also an essential factor for the construction of collective memory and ensuring that such crimes were not repeated.
Speaking in the context of the interactive dialogue were the representatives of Argentina, Azerbaijan, Colombia, Uruguay, Hungary, Peru, Paraguay, Brazil,
Armenia, Cuba, Latvia, European Union, Ecuador, Ireland and Morocco.
The following national human rights institutions and non-governmental organizations also took the floor: Procurador de los derechos humanos de Guatemala, Conectas, Permanent Aassemblz for Human Rights, Chile, Canada, Mexico, Belgium, Argentina, Bosnia and Herzegovina, United States, Colombia, United Kingdom, France, Turkey, Switzerland, Egypt, Guatemala, Network of the African National Human Rights Institutions, Advisory Council of Human Rights of Morocco and Human Rights Advocates.
Speaking in right of reply were the Democratic People’s Republic of Korea, Iran, Cyprus, Japan and Turkey.
The next meeting of the Council will be at 10 a.m. on Wednesday, 10 March, when it will hold its annual meeting on the rights of the child.
Panel Discussion on the Right to Truth
Opening Statement
NAVI PILLAY, United Nations High Commissioner for Human Rights, in her opening statement, said there had been significant developments in law and practice with regard to the right to truth. While that right had initially been linked to cases of the missing and disappeared persons, it had extended to other gross violations of human rights over the years, such as extrajudicial executions and torture. Several international treaties and instruments, national laws, as well as national, regional and international jurisprudence, and numerous resolutions of intergovernmental bodies recognized the right to truth regarding gross violations of human rights and serious violations of international humanitarian law. Notably, the International Convention for the Protection of All Persons from Enforced Disappearances provided that “each victim has the right to know the truth regarding circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared persons”. The additional Protocol I to the 1949 Geneva Conventions further recognized the right of families to know the fate of their relatives. The Human Rights Committee had also recognized the right of victims of gross human rights violations, as well as their relatives, to the truth about the events that had taken place and to know who the perpetrators had been.
Ms. Pillay said that, taking into account the evolution that was highlighted by those developments, among other developments, the right to truth implied knowing the full and complete truth about events which had transpired, their specific circumstances, and who had participated in them. That also included knowing the circumstances in which the violations had taken place and the reasons for them. In cases of enforced disappearance and missing persons, that right implied to know the fate and whereabouts of the victim. The right to truth might be considered as an autonomous right that warranted effective implementation. Its implementing mechanisms might include international, hybrid and national courts, truth commissions, commissions of inquiry, national human rights institutions, as well as other administrative bodies and proceedings. She had this February participated in the Conference on Assessing the Legacy of the International Criminal Court for the Former Yugoslavia, whose deliberations had confirmed the important contribution that criminal proceedings could play in establishing the historical record. Aside from the records of transitional justice mechanisms, States should preserve archives and other evidence concerning violations of human rights and international humanitarian law to ensure protection of the right to truth. The High Commissioner trusted that today’s panel would share information regarding recent developments and explore the best options, both at the international and the national, level for better pursuing the right to the truth.
Statements by Panellists
OLIVIER DE FROUVILLE, Member of the Working Group on Enforced or Involuntary Disappearances, wished to focus on two points: the nature, content and regime for the right to truth; and the question of the mechanism or mechanisms needed to improve the effectiveness for enjoying the right to truth. There could be no doubt that this was a right that was both individual and collective. Any individual had a human right to truth, but every people also had the inalienable right to know the truth about past events related to the perpetration of hateful crimes. And that collective right also had a corollary, the duty of the State to remember. Truth was a term that had different meanings and levels. The right included the results of any investigation carried out by the authorities, the circumstances in which the violation took place, the identity of the perpetrators, and the fate of the disappeared.
Mr. De Frouville observed that the right to truth had been recognized in the 2006 Convention on enforced disappearances and, as such, was different from to the right to information. Historically, the right to truth had emerged from this right to information. The right to truth was an emerging right in international law, based on the actual practice of States, where there were very different experiences, which showed that the right to truth could not be considered an absolute right. It was undoubtedly non-derogable, but there could be some limitations to it, which should be strictly defined. Only limitations strictly required by the situation could be applied, and they could not be imposed, but had to be agreed on by all in the context of a democratic process in which a balance was struck between the need for truth and the need for a transition towards a peaceful society. Without any doubt, there was a hard core of the right to truth which could not be limited in any way, for a very simple reason, as the effects of the denial of that right was a constant suffering. The measures to be taken to implement the right to truth had to be national measures, but on the international level the Working Group had constantly emphasized the fundamental nature of this right.
RODOLFO MATTAROLLO, International Law Adviser at the Ministry of Justice, Security and Human Rights of Argentina, said that, following the case of two French nuns who had been abducted in Argentina, truth proceedings had gotten under way in the country. After long proceedings, the Supreme Court had said it could not continue, so the case had been submitted to a regional human rights body. An amicable settlement had been proposed, opening the door for a legal basis in the quest for truth. Among other things, it had been based on recognizing truth as a human right and the cooperation of the State Federal Prosecution Office. The right to truth in all of the legal constructs of Argentina and the International Commission was believed to be both an individual and a collective right. There was also the right of the family. Society had the right to know the truth in cases of torture and summary executions. The right to truth had great depths. It dovetailed with the right to mourning. It was both an autonomous right and a specific right.
The right to truth merited the real attention of international human rights institutions and non-governmental organizations, Mr. Mattarollo underscored. It went over and beyond the right to information. It went beyond political and social motives. A constructive summary of the right to truth in terms of how it could work on the ground would be critical. To make that tangible, archives were crucial. Argentina had contributed to such archives, namely to the memory of the world programme of the United Nations Educational, Scientific and Cultural Organization. Forensic science was also part of the right to truth. It had helped identify the French nun who had been abducted in the late 1970’s and thrown from a plane into the sea. It was crucial to think about the ethical side of the right to truth, but there was also an operational side to it.
YASMIN SOOKA, Executive Director of the Foundation for Human Rights in South Africa, said the right to truth was a fundamental emerging principle of international human rights law and central to the struggle of transition to democracy, and against impunity and the legacy of massive human rights violations. There had been much debate around the connection between the right to truth and the right to justice. On that point, victims in South Africa had argued in the courts that even where prosecutions had not been possible due to factual or legal impediments, the obligation of the State to investigate still stood. Broadly speaking, the right to truth therefore was closely linked at its inception to the notion of a victim of a serious human rights violation. In the aftermath of armed conflict or periods of internal strife, the right to truth had often also been invoked to help societies understand the underlying causes of conflicts or widespread human rights violations. In fact, many countries, including South Africa, Sierra Leone and Liberia, had sought to implement that right by establishing truth commissions or commissions of inquiry.
Truth commissions had played an important role in dealing with the right to truth, but they were not the only instruments that could do so, Ms. Sooka pointed out. Prosecutions, reparations, vetting and security sector reforms had played a complementary role. In terms of structures, the role that national human rights institutions could play was critical because truth commissions usually had a short lifespan. In moving forward, it was important to consolidate and codify the different elements of the right to the truth, which would undoubtedly assist victims in their struggle against impunity. In the African context, there was a need to clarify and expand on the right beyond “inferring a right from the right to a fair trial”. In that regard, the Office of the High Commissioner for Human Rights might need to advise and host a joint panel with the regional body to take that right further, and the work of truth commissions could assist with developing and clarifying that right. A number of issues needed to be resolved, but they were not insurmountable.
DERMOT GROOME, Senior Trial Attorney at the International Tribunal for the Former Yugoslavia, said he wished to discuss three observations: the important contribution the Human Rights Chamber of Bosnia and Herzegovina had made to the right to truth; the relationship of international criminal law to that right; and the synergies between international human rights law and international criminal law due in part to the right to truth. On the first, a Government's refusal to account for a person in their custody constituted inhuman treatment of the victim's family, and of their right to be treated humanely therefore. The International Tribunal for the Former Yugoslavia had three legal bases for the right to truth, having also determined that a refusal to account for a family member in custody violated the right of their families to a family life. The Chamber had also determined that the Government had a duty to investigate violations of the right to truth and comply with its international obligations. The International Tribunal for the former Yugoslavia had provided legal bases – a tripod on which to rest the right to truth – and had begun the practice of setting out with precision the obligations on the State.
When speaking of the right to truth as a legally enforceable right, there was no such right in ad hoc tribunals set up for the purpose of adjudicating individual criminal responsibility, Mr. Groome observed. There was a duty of truth towards the victims, and to the falsely accused, and to society in general. International criminal tribunals could determine whether an accused was guilty of a crime, but it was important to limit the power of those tribunals. They could not adjudicate victim's rights, but their work established the crimes against them. When considering international criminal trials as part of a broader, more comprehensive effort to abolish impunity, their role became clearer. First, their factual findings were based on the highest legal standard of proof beyond reasonable doubt. Second, the ad hoc tribunals had vast stores of evidence, which were archived for anyone who wanted to see it. Third, was the issue of exhumations. International criminal law contributed to the larger project of reducing impunity, clearly. In time, human rights courts would come to examine events which also fell within the jurisdiction of the International Criminal Court. As the right to truth continued to evolve as a concept in international law, it should be borne in mind that international humanitarian law and international criminal law was all focused towards one aim: eradicating impunity.
Discussion
ALBERTO J. DUMONT (Argentina), speaking on behalf of the Common Market of the South (MERCOSUR), said the MERCOSUR member countries were committed to the promotion and protection of human rights at both the international and regional level. For example, in 2005 MERCOSUR had established a human rights body that dealt with such issues regionally. The right to the truth was among the important issues on MERCOSUR’s agenda, allowing technical cooperation and substantive collaboration to be undertaken in that regard. MERCOSUR had also contributed to bringing the right to the truth onto the agenda of the Human Rights Council.
AKRAM ZEYNALLI (Azerbaijan) thanked Argentina for initiating the resolution on the right to truth, which Azerbaijan fully supported. The right to truth was connected with the right to information, justice and reparation and contributed to the end of impunity and to the promotion of human rights. Azerbaijan shared the views expressed in the report that the right to truth entailed knowledge of violations of human rights. The right to truth was a pillar of protection that ought to be given to missing persons and their families. International law recognized the right of families to know the fate of their missing relatives. Human Rights Council resolution 9/11 recognized the need to study the link between the right to truth and the right to access to justice and other human rights in cases of gross violations of human rights and international humanitarian law. In that regard Azerbaijan asked what the views of the panellists were in terms of efficient ways of realizing those rights in practice.
ALVARO AYALA (Colombia), speaking on behalf of the Group of Latin American and Caribbean States, said this was an event to discuss legislative developments on the right to truth, and was an opportunity to draw attention to various considerations linked to the implementation of the right to truth, and to discuss options to better implement and protect that particularly important right, which belonged to victims of serious human rights and international humanitarian law violations and to their families and all of society. Many countries in Latin America had had experiences of serious human rights violations, and that was why they had promoted as far as possible a whole package of measures aiming to recognize and implement the right to truth, including truth commissions, the preservation of archives, research, and elements of proof. The right to truth was an autonomous right, both globally and in regional and subregional level standards. The Human Rights Council, like its predecessor, had adopted resolutions on the right to truth. It was important to continue to work together to bring about the recognition and implementation of the right to truth in the international human rights system.
LAURA DUPUY (Uruguay) said this panel discussion was an opportunity to give visibility to the right to truth, which was fundamental in the fight against impunity. Uruguay had, at the national level, proceeded to the reconstruction of its past to ensure that such horrible crimes as the country had been victim of in the past would never again be repeated. Uruguay’s efforts in that regard included the public recognition of illegal operations perpetrated by the military, culminating in the disappearance of persons, as well as the opening of archives dating from the dictatorship period. In the view of Uruguay, the International Convention for the Protection of All Persons from Enforced Disappearance constituted a great step forward towards ensuring the right to the truth.
ZOLTAN BANYASZ (Hungary) thanked Argentina for initiating the interactive discussion. Hungary supported the statement of the European Union. States should strive to balance the right to truth with established principles, such as the need to preserve the dignity of victims. It believed that the concept of the right to truth was also pertinent at the international level. International criminal tribunals considered archives as residual elements. Those had secondary value for memory and research. Factual findings formed an integral part of the legacy of institutions. Any effort aimed at improving the efficiency of such tribunals did not absolve States or truth and reconciliation commissions from carrying out their mandate in that regard. What could the global community do to support civil society initiatives to investigate and disclose facts about gross violations of human rights?
INTI ZEVALLOS AGUILAR (Peru) said that, between 1980 and 2000, Peru had been shaken by bloody internecine clashes that had left profound marks on its society. In 2001, with a return of democracy, the State had established the Truth and Reconciliation Commission to investigate events of the previous decades. It had published a report showing the scope of the horrors that had shaken the country for 20 years, and had made various recommendations for redress for victims and institutional reforms, as well as recommendations on reparations and measures to strengthen the national reconciliation process. It had also determined, through the analysis of witness statements and documents, those that had been responsible for violations of human rights, which had allowed the judiciary to investigate and sanction them. The Constitutional Court had furthermore issued a binding ruling, recognizing the right to truth in Peruvian legislation, and that right was enshrined therefore in Peru.
FEDERICO A. GONZALEZ (Paraguay) said Paraguay had seen a phase of authoritarian regimes under which human rights violations had been very common. However, starting in 1989, the country had initiated a political consolidation process aimed at the promotion and protection of human rights in terms of legislation and at the executive level. Among those efforts had been the establishment of a Truth and Justice Commission in 2003, mandated to investigate human rights violations that had been committed by State agents in order to establish the truth, provide the country with its collective memory and to provide for compensation for the victims. The activities of that Commission had culminated in its official report, which had been presented in August 2008.
ALEXANDRE GUIDO LOPES PAROLA (Brazil) shared Peru’s concerns in terms of discussing the contents of the right to truth and good practices. Brazil had always co-sponsored all initiatives on the right to truth, and had supported high-level discussions within the Common Market of the South (MERCOSUR) on that issue. Brazil’s third national programme on human rights included the right to memory as one of its main pillars. In 2007, Brazil had launched a commission on the right to truth and memory, covering work on political deaths over the past 11 years. Brazil expected to adopt a law introducing amendments on access to information. There could be no restricted access to those documents.
VAHEH GEVORGYAN (Armenia) said the right to truth was getting more and more recognition as a global concept upon which an ongoing struggle by oppressed groups and individuals for justice and peace was anchored. The application of the right to truth was primarily a national undertaking; however, its global advancement, including acknowledgement and condemnation of past gross violations of human rights including crimes against humanity, was gaining the utmost importance at all levels. The right to truth could not be realized per se without evolving dialogue among all stakeholders in society. For that to happen, confidence should be built and enhanced in society. First and foremost, States should remove all legal provisions effectively curtailing the right to truth. The right to truth was realized when memory, truth and justice were revealed and served. However, its main outcome was the construction of a just society where past events and remembrance days were not to be feared, but marked with dignity and confidence in a common future.
MARIA DEL CARMEN HERRERA CASEIRO (Cuba) said recognizing the right to truth was of particular importance for the Latin American region, since it had for many years been the victim of cruel military dictatorships that had made torture, forced disappearance and extrajudicial killings their daily bread. The truth and justice commissions that existed in several countries had contributed to investigating those human rights violations and had proved the importance of establishing the right to the truth in the fight against impunity. Cuba was of the view that the steps which had been undertaken to ensure the right to truth had to be systematized with a view to continue implementing that right. Cuba supported the initiatives and efforts promoted by Argentina on behalf of the Common Market of the South (MERCOSUR) in this area.
JANIS MAZEIKS (Latvia) said the right to truth was essential to healing in any society that had experienced war, gross violations of human rights or totalitarian repression. Latvia was one of the countries that had emerged from the bloodiest war of the twentieth century and the oppression of two totalitarian regimes. Since gaining independence, Latvia had worked towards establishing a full picture of what had happened during those periods. There were still issues where further work was needed, including through effective international cooperation. Archives should be open to both victims and researchers. Protecting personal information should not hamper understanding what happened 70 years ago. Attempts to glorify a totalitarian past showed a need for continued free and honest discussion.
JAVIER GARRIGUES (European Union) said the holding of this panel contributed to strengthening the rule of law and the fight against impunity, particularly in cases of gross human rights violations and serious breaches of international humanitarian law. The European Union was convinced of the evident link between the right to truth and human dignity, and was determined to work towards finding effective and appropriate measures, including at the international level, to ensure the investigation and accountability for grave and systematic human rights violations, as well as remedy and reparation for victims of such violations. Those measures could help States and societies in their respective process of transitional justice, and play a crucial role in addressing demands for truth, justice, reparations and institutional reforms to prevent a recurrence of violence. Panellists were asked which aspect of the right to truth needed to be further clarified and developed; whether they could highlight some examples of international cooperation and technical assistance in relation to the right to truth, and what should be the priorities for international cooperation in the field; and in what areas related to the right to truth should common standards be developed?
JUAN HOLGUIN (Ecuador) said the Government of Ecuador had established a Truth Commission in 2007 to fight impunity for acts of human rights violation. The mandate of that Commission had as its main objective to support the adoption of measures that allowed light to be shed on past human rights violations and above all to ensure justice for and compensation of victims. As part of its work, that Commission had examined more than 600 testimonies in Ecuador and abroad, leading to the identification of over 100 cases where State agents had presumably participated in the violation of human rights. Ecuador was firmly committed to defending the right to the truth, and the Government was of the view that every society had the right to know in detail about the circumstances and reasons that had led to massive or systematic human rights violations in the past.
AISLING NI LEIDHIN (Ireland) said Ireland was committed to the promotion of the right to truth, which underpinned international human rights law. It encouraged other States to take measures to help facilitate victims’ right to seek, receive and impart information relating to involuntary missing persons. The right to truth also took into account other grave violations of international humanitarian law, such as torture and secret detention centres. Ireland called on all State actors to preserve archives and other evidence concerning serious violations of international human rights law. Their experience in Northern Ireland had taught them about the importance of the right to truth in post-conflict reconciliation processes. Sustainable reconciliation centred upon a readiness to address the truth, an acknowledgement of the wrongs committed and a willingness for mutual forgiveness. The right to truth was often understood to include the identification of perpetrators of gross violations of international humanitarian law. However, in many situations impunity was offered to establish the truth regarding the human rights violations. Panellists were asked to what extent it was possible to reconcile victims’ desire for perpetrators to be brought to justice and the need for society as a whole to put the past behind them and begin to rebuild for the future?
OMAR HILALE (Morocco) observed that the right to truth was recognized as such in international law – in particular in the Geneva Conventions and the Convention on Forced Disappearances, and in many resolutions by the Human Rights Council and the Commission on Human Rights – and it had also been reflected in various commissions of inquiry and truth and reconciliation commissions in many countries; and yet it seemed in many situations that the scope of the right was limited. There was a clear, non-derogable right for families to know what had happened to their loved ones. The right to truth required various methods of action, including the need to keep records. It was now time to combine all of those elements into a single instrument to codify all instruments on the right to truth.
KATHARINA ROSE, of Procurador de los derechos humanos de Guatemala, said Guatemala had witnessed significant extrajudicial killings, disappearances and torture in the past. For that reason, Procurador de los derechos humanos de Guatemala had been approached by thousands of families that sought information on victims. The organization had therefore established a central registry of cases of forced disappearance for cases that had occurred during the civil war, in order to provide a data base that not only included the number of victims but also other information that could contribute to the success of investigations. The Guatemalan justice system for its part had only made further progress in three cases, two of which Procurador de los derechos humanos de Guatemala had contributed to on the basis of a special mandate.
SAMUEL FRIEDMAN, of Conectas Direitos Humanos, thanking the High Commissioner for her support for the Third Human Rights Programme, said the creation of a truth commission in Brazil would be a big challenge, given the heated debates its launch had generated in the last months. Learning about the root causes of violent institutional practices during the country’s military regime was essential for preventing perpetrations under democratic rule. Such a commission would help new generations understand their past and engage in the prevention of new violations. Conectas expected this commission to allow families to receive official answers from the State regarding the fate of their loved ones, including the circumstances of their death and their remains. It called upon the Government of Brazil to ratify the International Convention for the Protection of All Persons from Enforced Disappearances.
HORACIO RAVENNA, of Permanent Assembly for Human Rights, said the right to truth was the result of the developments in international human rights law and formed the basis of a new autonomous right. It was a right which must be guaranteed, even when impunity prevented the criminal prosecution of gross violators of rights and perpetrators of crimes against humanity. A significant step forward was the situation in Argentina, where prosecutions showed the link between the right to truth and the right to justice, redress and reparation. The right to truth was shaped in the International Convention on the Protection of All Persons against Enforced Disappearances, and belonged to society as a whole. It should not be confused with the right to information. The right to truth was the right to know the fate of the disappeared and of the victims of human rights violations, the reasons why they disappeared, who was responsible, and how the latter were punished. The State should ensure that violations were well-known, complaints investigated, and victims had access to appeals. The international community should shoulder the responsibility of drawing up a specific instrument guaranteeing this right to all individuals and to society as a whole.
Response by Panellists
OLIVIER DE FROUVILLE, Member of the Working Group on Enforced or Involuntary Disappearances, said that the right to the truth was a right that was separate from the right to justice and the right to reparation. In practice however some countries of course tackled issues by combining these three rights simultaneously while other States started working on one right before tackling issues relating to the other two rights. In any case, the important issue in that regard was to tackle human rights violations in one way or another. Mr. De Frouville underscored that that process must be a democratic process in the sense of an inclusive, participatory process that allowed the victims and families to participate. A programme that ignored the victims and their families would obviously be inappropriate and lead to a process that was difficult to implement. As for the question on the possibility of compiling best practices, Mr. De Frouville confirmed that the Working Group had a role to play in that regard, but that undoubtedly a more comprehensive study could be carried out.
RODOLFO MATTAROLLO, International Law Adviser at the Ministry of Justice, Security and Human Rights of Argentina, said making the work systematic might lead to making it an objective with an instrument codifying all instruments on the right to truth. On the cooperation between civil society and the State, the former had already started the work on investigations. So, that work was essential but it was crucial to ensure the international community’s cooperation with the State. Investigating the remains of those who had disappeared in Sierra Leone was raised. As part of a two-pronged approach, instruments and studies and an exchange of good practices and experience were crucial.
YASMIN SOOKA, Executive Director of the Foundation for Human Rights in South Africa, said one of the most important parts of best practices was truth and reconciliation commissions and how they interacted with society. The reality for most of these was unless they had the participation of victims and with civil society in a way that democraticized the process, then they could be meaningless. Thus, their mandate must be inclusive, and they should not be narrowed in scope. In terms of gathering the facts, they should be inclusive of civil society and victims groups and they should use a variety of methods that were human rights-friendly. The way in which they related to international bodies and structures as well as donors was also important, and codes of conduct should be built around this. There should be collaboration between the international community and these bodies on the implementation of the recommendations emanating from the latter. From the perspective of the rule of law and the rights of victims, this implementation was an important step. The work of the national commissions needed to be supported. A study which sought to collect information in terms of regional demographics was vital if the right was to be encapsulated properly. Africa needed to develop a proper protocol on what the right was and what access to the truth and to information meant.
DERMOT GROOME, Senior Trial Attorney at the International Criminal Tribunal for the Former Yugoslavia, responding to a number of questions on technical assistance and other issues, said that that could be found in international criminal law, among others. Much was also known about the importance of archives, with witnesses being very important in ensuring the right to the truth. However, witnesses could only appropriately contribute if they were given sufficient security. Responding to a question asked by the delegation of Spain, Mr. Groome said that there were differences in how jurisprudence was applied; researching those differences and examining options to homogenize application would be of benefit in moving forward. Many people of the former Yugoslavia truly wished to ensure that the grave mistakes of the past would never again be repeated, and Mr. Groome underscored that establishing the truth was a necessary condition to that end.
Discussion
RODRIGO DONOSO (Chile) thanked Argentina for organizing the panel. The right to truth formed the basis of a fundamental need for effective justice and in the fight against impunity in terms of protecting human dignity. In Chile it had been an essential element for building democratic systems. Today the country’s responsibility was to press ahead with the content of the right to truth. That right was also an essential factor for the construction of collective memory, which was fundamental for democracy and ensured that such crimes were not repeated. There could even be a Council resolution, linked to the role of memory, its preservation and recuperation, regarding access to all documentation, which could allow for the truth to be established.
LAURIE SERGENT (Canada) said Canada had been a supporter of the initiatives on the right to truth in the Commission on Human Rights and the Human Rights Council since the first initiative in 2005. This important initiative was aimed at ensuring that the truth regarding gross violations of human rights and serious violations of international humanitarian law was revealed to the public to help ensure the accountability of States, bring perpetrators to justice, and provide a remedy for victims. Revealing and preserving the truth and securing justice regarding such grave violations were vital for societies in transition to achieve sustainable peace and reconciliation. All States had a duty to end impunity and to prosecute those responsible, including accomplices, for all violations of human rights and international humanitarian law, including gender-related crimes. States should keep the impunity principles in mind when designing truth and reconciliation processes.
SALVADOR TINAJERO (Mexico) said the right to truth was a separate, stand-alone right that was closely related to other substantive rights and connected to the issue of impunity. The right to the truth was also connected to the remedies that victims ought to have access to when their rights were violated, also being related to the right to reparation. Mexico would like to pay tribute to the important work that had been done by civil society organizations in order to ensure that the right to the truth would become a reality. Nevertheless, the delegation was of the opinion that not all elements that were encompassed by the right to the truth had been properly grasped at present. What could be undertaken to achieve a more comprehensive understanding of the right to the truth, Mexico asked.
NICOLAS FIERENS GEVAERT (Belgium) said Belgium had always attached great importance to putting in place mechanisms such as transitional justice, of which the right to truth was a fundamental element. Thus Belgium had been one of the first countries to support Argentina’s initiative in that regard. The emergence of that right should be stressed in the International Convention for the Protection of Persons against Forced Disappearances. Belgium had become more involved in stressing the importance of archives and the protection of evidence as part of the right to truth.
ALBERTO J. DUMONT (Argentina) said the participation seen today and the various ideas shared showed how the issue of the right to truth was relevant and of interest to all. Looking at the history of Argentina over 30 years, it could be seen that civil society organizations in general and non-governmental organizations in particular had done a lot of work to make sure that there was public recognition of all the events that occurred during the dictatorship. The National Congress declared in 2003 that the amnesty laws were annulled, and the Supreme Court declared them unconstitutional, which allowed many proceedings for violations of human rights to get underway in the provinces. There were many examples of all the achievements which were unprecedented at the international level. The work that speakers so far this afternoon had done and the statements still to be heard were a basis for the Human Rights Council's future work. There had been plenty of pertinent contributions, with talk of a single approach and instrument on the right to truth, and the Council must continue to discuss this matter in future sessions.
LJUBICA PERIC (Bosnia and Herzegovina) said today’s panel discussion would contribute to raising the visibility of the right to truth which was a very sensitive and important issue. Bosnia and Herzegovina was a firm supporter and a traditional co-sponsor of the human rights resolution on the right to truth. Its support was widely the result of the country’s war experience and the resulting consequences; in many cases the absence of truth and the challenges of achieving that truth had been experienced in the country. Bosnia and Herzegovina acknowledged the significant achievements that had been made at the international level, not least through the various truth commissions and through international tribunals. Bosnia and Herzegovina wondered how the current situation regarding the right to the truth could be improved and underscored that it saw a need for the consolidation of all existing elements in order to make existing efforts more efficient.
TARA FOLEY (United States) said the United States was pleased to take part in this panel on the right to truth. It thanked Argentina in particular for putting this crucial matter before the Commission on Human Rights. The right to truth was linked to the right to seek, receive and impart information under Article 19 of the International Covenant on Civil and Political Rights. It supported the principle that families had a right to know the fate of their missing members. The United States underscored that the right to the truth was inextricably intertwined with the promotion of democratic ideals, human rights and justice.
ALVARO AYALA (Colombia) said Colombia understood the value and importance of knowing the truth for society and the victims of human rights violations in particular. The State must preserve the historical memory of acts that should never re-occur. Colombia had set up a range of institutions to preserve the memory of the past and investigate these events, ensuring that the right to truth was present, including through a truth and reconciliation commission. As part of the justice and peace proceedings, victims were lodging their complaints. There had been allegations of massacres, child recruitment, torture, violence and abductions, and a certain number of these had been resolved. There was still much to be done, and it would be a lengthy and painful path, but Colombia had decided to continue to press for the quest for truth and reconciliation, in order to bring about peace.
CATHERINE HOLMES (United Kingdom) said as a matter of policy the United Kingdom supported truth and reconciliation mechanisms and similar measures that exposed the facts of past events with a view to help societies to come to terms with and move on from gross human rights violations in their territories. By contrast, the United Kingdom accepted that certain treaty provisions created a specific right to information in certain circumstances that applied to States parties to such instruments. The United Kingdom did not accept, however, that there was a general right to the truth under international human rights law. The Government enacted the Freedom of Information Act in 2000 that defined what information public sector organizations were obliged to provide on request. That legislation was enacted domestically not because they considered it necessary to do so under international law but for reasons of public policy.
EMMANUEL PINEDA (France) said States had recognized the need to ensure reparations to victims. In that regard France should welcome progress in the jurisprudence of the European Court and other regional courts. The right to truth was necessary to combat impunity. Without it there would be no solutions to conflicts nor would the suffering of families of victims be alleviated. States had not been sufficiently mobilized around that issue. More States had to ratify the International Convention on Enforced Disappearances. Efforts had to be stepped up in that regard. States should analyze initiatives taken by various judicial bodies on the right to truth. They should take stock and anaylze best practices in addressing the value of ad hoc norms. They needed to have the resources to carry out their work. All States should find a formula, which would inject the necessary momentum on that issue, partly by involving the Office of High Commissioner. France was committed to being involved in such efforts.
FAITH ULUSOY (Turkey) said although there was no common definition of the scope and nature of the right to truth, all individuals had the right to access information on their loved ones who disappeared or went missing. States clearly had the obligation to provide this information to the family and relatives of those who disappeared or went missing. All needed to fight against impunity for those hiding information and those who provided incorrect information on purpose. There had been successful mechanisms in searching for the fate of missing persons, and the Committee on Missing Persons in Cyprus was one of them. The constructive cooperation between the two communities and the financial support from the European Union, United Nations and related parties to support its activities constituted a good example in the field. It was hoped that the healing of old wounds would facilitate the overall process of reconciliation between the two communities.
KATRIN WEILHAMMER (Switzerland) thanked Argentina for this excellent initiative, also thanking all panelists for their contributions. The right to truth was of particular importance to Switzerland as that right was linked to transitional justice systems, to the right to effective recourse as well as to the right to justice. That fact explained, among others, why different States had adopted different approaches with regard to the right to truth. Switzerland for its part underscored that it was vital to look at the links with other rights and agreed that the right to truth was particularly important in the fight against impunity. The enjoyment of the right to truth implied the establishment of truth and justice commissions. In that regard, best practices should be compiled. How could that be best achieved, Switzerland asked.
AHMED IHAB GAMALELDIN (Egypt) said the right to truth was derived from the right to be protected from enforced disappearances. For many years, Egypt had attached great importance to what had happened to its soldiers, their fate and whereabouts, seeking compensation for them. It looked forward to seeking best practices from Argentina and other countries. From various experiences and knowing the need for legal adaptations, it asked if it would be best to do that at the criminal courts or through a separate legal framework.
CARLOS RAMIRO MARTINEZ ALVARADO (Guatemala) said more than 10 years ago, the Commission for Shedding Light on the Past submitted its report and recommendations, a Commission that had been established by the peace agreements, and at the same time the Catholic Church made a similar contribution. Both contained some recommendations which had not yet been implemented, despite Government activities to shed light on the 36 years of armed conflict. The international community and civil society organizations had contributed to the process. There had been some judicial proceedings, with last year seeing the first sentencing for enforced disappearance. Guatemala continued to work closely with the Inter-American Court for Human Rights. Guatemala believed the search for truth was part of what it needed to do.
AHMED HERZENNI, of Network of the African National Human Rights Institutions, said the right to truth was a basic principle that emerged in the context of democratic transitions and as part of efforts aimed at dealing with human rights violations that had occurred in the past. The right to truth was an integral part of the right to justice and was closely related to the obligation of States to inform victims, their families and even society at large on the circumstances of gross human rights violations. The Network appreciated the important role that national human rights institutions had played in the protection of the right to truth. Their activities included, among other measures, the examination of human rights violations perpetrated in contexts of armed conflicts by States and non-state actors and ensuring the follow-up of the work of key mechanisms in that regard, including publication of such work and the implementation of decisions and recommendations made.
MUSTAPHA IZNASNI, of Advisory Council of Human Rights of Morocco, said part of the measures of the Advisory Council to promote and protect human rights were aimed to establish the truth. The Advisory Council had made it possible to make violations known to Moroccan society. It had carried out public discussions on victims. It aimed to let society know what had happened and to reveal macro and micro truths. The Advisory Council of Human Rights of Morocco had thus carried out investigations on most of the pending 66 cases. It had informed families of the outcomes of investigations. One of the most important undertakings was to look at preserving the right to memory, modernizing it, carrying out research and contributing to preserving memories of the past.
RENE VELASQUEZ, of Human Rights Advocates, said traditionally the right to truth was used as an instrument to identify the actual and intellectual perpetrators of crimes against humanity and provide compensation for victims. The importance of the right to truth in this context could not be ignored, but it could also be applied in any situation of gross violation of human rights, such as in cases where corporations had committed crimes, such as in Somalia, where there was a need to identify the corporations guilty of violating human rights. A similar situation was faced by the neighbours of the Las Brisas community in El Salvador, which had been suffering from the dumping of toxic waste. The scope of the right to truth should be broadened, with the explicit inclusion of all necessary instruments to apply to gross human rights violations, including those committed by corporations.
Concluding Remarks
OLIVIER DE FROUVILLE, Member of the Working Group on Enforced or Involuntary Disappearances, said he welcomed the change of position of the United States with regard to the right to truth. By contrast, he did not understand the position the United Kingdom had expressed; at this stage they did not have the choice between the existence and the non-existence of the right to the truth in international customary law, but rather to reflections on the content of that law. That right to truth meant that relatives of victims knew about the whereabouts of friends or loved ones. Mr. De Frouville agreed that the norms in this field of human rights were fragmented and for that reason underscored the need for a focal point within the United Nations system. Such a focal point could consolidate all experiences and attempt to identify homogenous approaches.
RODOLFO MATTAROLLO, International Law Adviser at the Ministry of Justice, Security and Human Rights of Argentina, said he wished to make three comments. On Mexico’s comment on a comprehensive approach, he said there were many different stages. There could be a study that could lead to establishing an instrument. States had to ensure that thinking went hand in hand with practice. Victims had been calling for that. States must have exchanges of experience, including south-south exchange, clearly not ignoring global cooperation. On technical cooperation, problems in archives would require such an initiative. Finally, perhaps States ought to put more emphasis on education and think about re-establishing the essential values that societies were based on, human dignity. The right to truth was an inalienable part of that.
YASMIN SOOKA, Executive Director of the Foundation for Human Rights in South Africa, said after a number of years the international community had arrived at a certain point, and it needed to be careful now to not go backwards; it needed to set up a particular instrument for the right to truth, while ensuring that it did not diminish other rights. It needed to look at how this right had been dealt with practically. A truth commission did not exhaust the right to truth, and States should not use the fact that one had been held to reduce the access to the right for victims. This was a quest for a lifetime. The question on how to arrive at the truth in a way that was unassailable was a considerable challenge. The manner in which forensic units were collaborating with scientists was a best practice and this should be included. The question of pedagogy and memory and the link with the next generation was important - often conflicts did not die down, as it was an issue of what was remembered, and it was not enough to have the truth known, but it needed to be acknowledged by all members of society.
DERMOT GROOME, Senior Trial Attorney at the International Tribunal for the Former Yugoslavia, said the right to truth was an obligation to investigate and determine the whereabouts of any missing person. In response to the comment made by Switzerland regarding the link between the right to the truth and other rights, Mr. Groome said the position of the Inter-American Court on that was very clear; reparation had always been part of its decisions and the right to truth was understood as the right to an approach that truly aimed to establish justice. By framing the right to truth in the context of the right to justice, the court could also mandate prosecutions and disciplinary measures warranted by the prosecution as well.
Right to Reply
CHOE MYONG NAM (Democratic People’s Republic of Korea), in a right of reply, said that the abduction case had already been resolved in conformity with a joint declaration with Japan in 2002. Japanese authorities still insisted on raising it as if it was still outstanding. By talking as if it was still outstanding, Japan sought to disguise its role in killings, detentions and the sexual slavery of millions of Koreans during its occupation of the country for over 40 years. Why were the Japanese so reluctant to comment on that? Japan spared no effort in rewriting its history by making an issue of abduction cases that had already been resolved.
MESBAH ANSARI (Iran), speaking in a right to reply, said Iran deeply regretted the policy of the United Kingdom in singling out Iran by allocating its statements exclusively and consecutively to Iran through reiterating perpetually unsubstantiated allegations. It showed a serious negligence of the principle of non-politicisation in the Human Rights Council that was destructive. For further clarification of the allegations made this morning regarding the seven Baha'is, it had already been elucidated during Iran's Universal Periodic Review that their adherence to Baha'ism did not constitute grounds for their persecution - the people had never been persecuted for their religion, but for the committing of crimes. There was a danger of deviation from any of the basic principles of the Human Rights Council, as it could have destructive consequences that would curtail the achievements of the Human Rights Council, and harm its future goals.
MARIA MICHAEL (Cyprus), speaking in a right of reply in response to the intervention made by the delegation of Turkey, said Cyprus welcomed the work of the Working Group as well as the fact that an additional team for the exhumation and identification process had been put in place.
AKIO ISOMATA (Japan), speaking in a right of reply, underlined that Japan had faced past events with utmost sincerity, publicly expressing its remorse, particularly to Asian nations. It had to make it clear that the Democratic People's Republic of Korea’s statement saying that the matter of the abduction cases had been resolved contradicted an agreement between both countries. That country changed its position in 2008. Later on both countries agreed on the modalities of that agreement. At present, out of 17 recognized as people who had been abducted, only five had come back home. The Democratic People’s Republic of Korea had given no explanation on the whereabouts of the rest of them. Acts of abductions were human rights violations that tore apart families. The Democratic People's Republic of Korea should not make groundless allegations.
FAITH ULUSOY (Turkey), speaking in a right of reply, said Turkey was not able to understand on what grounds a right of reply was requested by Cyprus, as it did not understand what was objectionable in its statement, but it respected the President's ruling.
CHOE MYONG NAM (Democratic People's Republic of Korea), speaking in a second right of reply, said the Democratic People’s Republic of Korea rejected yet again the unsubstantiated Japanese allegations. The Japanese abduction case was thoroughly resolved thanks to tireless and continued work by the Democratic People's Republic of Korea. There was nothing left to discuss. Japan had always been unsuccessfully implicating its domestic missing cases with its relations with the Democratic People's Republic of Korea. As for the past crimes, Japan did not even admit its crimes against humanity such as drafting and abduction, genocidal killings and military sexual slavery. These crimes constituted continuing violations, as there was no reparation. The Japanese authorities should refrain from using these incidents for political purposes and work to resolve the situation of Korean nationals in Japan.
AKIO ISOMATA (Japan), speaking in a second right of reply, said Japan wished to reiterate that it was truly regrettable that the Democratic People's Republic of Korea had not responded concretely to the issues raised by the international community, including the abduction issue, which was a serious human rights violation. The Democratic People's Republic of Korea should simply respond in a concrete and constructive manner.
For use of the information media; not an official record
HRC10/022E