Understanding the Right to the Truth

March 24th every year is marked as the international day for the right to the truth concerning gross human rights violations and for the dignity of victims. The objective of this day is to honor the memory of victims of gross and systematic human rights violations and promotes the importance of the right to truth and justice; to pay tribute to those who have devoted their lives to, and lost their lives in, the struggle to promote and protect human rights for all; and to recognize, in particular, the important work and values of Archbishop Oscar Arnulfo Romero, of El Salvador, who was assassinated on March 24th 1980, after denouncing the human rights violations of the most vulnerable populations.

Proclaimed by the United Nations, the right to truth evolved from the right to know which obliges State Parties to fulfill their obligations toward the missing and dead prompted mainly by the right of families to know the fate of their relatives. Through the jurisprudence of the Inter-American Court, the right has evolved from being understood as belonging to only members of victims’ families to spanning all members of society.  A legal duty has also been placed on States to take reasonable steps to prevent human rights violations and to use the means at their disposal to carry out a serious investigation of violations committed within their jurisdiction. This obligation includes; identifying those responsible, imposing the appropriate punishment and ensuring the victims receive adequate compensation. Additionally, States are to adopt all measures needed to establish a true account of past events.

Deyda Hydara [Photo Source: Premium Times, Nigeria]

This right emerged in response to the failure of States to clarify, investigate, prosecute and punish gross human rights and International Humanitarian Law violations. The principles underlying the right have  been recognized by the European Court of Human Rights (ECtHR), the Human Rights Chamber of Bosnia and Herzegovina (HRCBiH) by the African Commission on Human and Peoples Rights within  the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa and now very recently by the Commission again in 2015, in its principles and guidelines on human and people’s rights while countering terrorism in Africa.

The principles and guidelines were adopted to assist States in implementing their human rights obligations while countering terrorism and other forms of violent extremism with an emphasis placed on the victims of terrorism, it is, therefore, no surprise that Part 12 of the guidelines provides for the right to access to information and the right to truth. Incorporating this provision in the guidelines on human rights while countering terrorism is not only critical but timely. It is with the clear understanding that in an ongoing conflict, where counter-terrorism operations are usually difficult for conventional forces because insurgents do not observe human rights norms and perpetrators are often difficult to identify especially with limited intelligence, States are expected and obligated to provide civilian protection and conduct investigations when serious allegations of violations are reported.

Measures adopted by States to counter-terrorism have often been accompanied by ‘unintended casualties.’ Several reports have been published and allegations  leveled against State actors in Cameroon, Nigeria, Niger, Mali including extra judicial killings, high handedness in dealing with suspects, inhumane detention conditions, enforced disappearances, sexual violence and abuse that have called for investigations, identification of the persons involved, appropriate punishments and compensation for victims. Ironically, State actors and their families have also become victims, for example in Nigeria where it was reported in 2016 that 83 soldiers went missing in the North East. There is currently no established effective identifiable framework for dealing with these situations in any of these Countries. The Nigerian Army has recently established a Human Rights Desk at its Headquarters which is very laudable. It must however ensure that this mechanism is accessible, investigations are thorough, the outcome of investigations are publicly available and there is recourse to a remedy where violations are established.

The explanatory notes for the right to truth in the African Commission guidelines include the European Court of Human Rights case, El Masri v. Macedonia, 3 December 2012, Application No. 39630/09, paras. 191-94 where the court expounded on the right to the truth to cover an adequate response by the authorities in investigating allegations of serious human rights violations which is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. This fits well within the framework that the African Commission has envisaged in applying the right to the truth to ongoing hostilities such as counter terrorism operations.

In his report dealing with the ‘Framework Principles for securing the accountability of public officials for gross or systematic human rights violations committed in the context of State counter-terrorism initiatives’, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism states that the principles of international law that govern accountability for such violations have two complimentary dimensions. These include the legal right of the victim and of the public to know the truth and includes the right of the victim to adequate reparations for which the establishment of the truth is an indispensable part. The payment of monetary compensation without full public exposure of the truth has been held as insufficient to discharge this obligation.

As States that have been most affected by the insurgency such as Nigeria move towards the third pillar of their counter terrorism strategy, which encompasses reconstruction, they must ensure that this pillar encapsulates a process of justice including finding the truth about violations, making reparations and restoring the dignity of those affected.  Setting up frameworks that help to uncover the truth will also provide an opportunity for dealing with the conditions that allow violent extremism to develop.

The right to truth has been interpreted as an obligation the State owes to its citizens, but it is increasingly becoming obvious that this interpretation should also cover state actors who have become victims and whose families also need to ascertain the truth regarding what happened to their families in the line of duty. It is hoped that as communications are brought before the African Commission and cases are filed before regional bodies such as the ECOWAS Court, the understanding of this right will also be enriched by African jurisprudence.

By Catherine Kyenret Angai, Program and Advocacy Coordinator at the Open Society Initiative for West Africa.

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