Academic journal article Harvard International Review

Truth as Justice: Legal and Extralegal Development of the Right to Truth

Academic journal article Harvard International Review

Truth as Justice: Legal and Extralegal Development of the Right to Truth

Article excerpt

The field of transitional justice is rapidly emerging within international human rights law. Organizations such as the New York-based International Center for Transitional Justice (ICTJ), deploy dozens of transitional justice consultants to post-conflict states, and academic Ruti Teitel notes that the international system has lately seen a pervasive normalization of transitional justice in human rights law. An essential component to this spread of transitional justice is the concept of a victim's "right to truth." Though this right to truth has become increasingly visible in international human rights legal discourse, it has not emerged in a traditional, straightforward manner, built upon landmark legal cases and documents. Rather, it has arisen in a diffuse manner in which non-legal academics and activists have served as essential contributors. This extralegal component of the right's development, however, does not undermine its legitimacy as the traditional legal community might expect. In fact, it ultimately bolsters its applicability to local, culturally-specific contexts and promotes a broader definition of transitional justice beyond merely prosecutorial justice to encompass conceptions of victim rehabilitation and societal reconciliation.

Founding Arguments for the Right to Truth

One of the earliest works that explicitly argued for the right to truth is Juan Mendez's 1997 "Accountability for Past Abuses," frequently cited as one of the first arguments to recognize the global emergence of this right. Mendez, President Emiritus of the ICTJ, defined the right to truth as a placement of "obligation [on the state] to disclose to the victims and to society all that can reliably be known about the circumstances of the crime, including the identity of the perpetrators and instigators." In his article, Mendez recognized that the victim's "right to know the truth" was not yet a binding legal obligation, but he nonetheless predicted that the international legal community would increasingly recognize this right, as it was founded in "norms of universal applicability." As a primary example of the growing recognition of the right to truth in the global community, Mendez observed that the eighth annual report presented by Special Rapporteur Leonardo Despouy before the 1995 UN Economic and Social Council indicated that "the right to know the truth has achieved the status of a customary international law norm."

Similarly, other advocates for the right to truth have interpreted various "right to information" clauses in international documents as providing a foundation for the right to truth. Priscilla Hayner, the author of Unspeakable Truths (2000), cites a former researcher and writer for Human Rights Watch/Africa who argues that the right to truth is contained within the right to "seek, receive, and impart information" guaranteed by Article 19 of the Universal Declaration of Human Rights. Further, the "right to receive information" in the African Charter on Human and Peoples' Rights guarantees a similar foundational right.


Formal Institutional Recognition

Since the publication of his 1997 article, Mendez has drawn upon cases heard by various regional courts and commissions to establish an expanded and more rigorous legal foundation of the right to truth. In particular, the Chilean experience with the transition from dictator Augusto Pinochet to President Patricio Aylwin illustrates the conception and spread of the right in international human rights law. Pinochet's 1968 self-amnesty law precluded criminal investigations or trials of human rights violators and military leaders under his regime. Without the option of criminal prosecution, Aylwin's administration focused on the truth-telling component of transitional justice by establishing the Chilean Truth and Reconciliation Commission, headed by Jorge Rettig. Mendez asserts that the individual hearings and the Commission's detailed reports on each case brought to its attention helped establish the norm that "the state owes each victim not only a general truth about the patterns and practices of repression but also an individualized truth about what happened to each and every victim. …

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