Identidad cultural de los afroecuatorianos

Truth, even ‘legal truth’, is thought of as having significance to individual victims/their families as well as to the society as a whole. Some writers argue that this significance of truth has led to the emergence of the ‘right to truth’ under international law.469

It is noted, “the right to truth has emerged as a legal concept at the national, regional and international levels, and relates to the obligation of the state to provide information to victims or to their families or even society as a whole about the circumstances surrounding serious violations of human rights.”470

The recognition and enforcement of this right is an essential component of transitional justice. Although whether such a legal right to truth exists is controversial, the significance of truth to transitional societies is beyond doubt such that many transitional justice processes have incorporated the quest for truth as their declared objective. Thus, it is important to briefly discuss the significance of truth to societies in transition.

Alice H. Henkin clearly stated the importance of truth:

469

NAQVI, Above n 451, at 252

470

115

Successor governments have an obligation to investigate and establish the facts so that the truth be known and be made part of the nation’s history. There must be both knowledge and acknowledgement: the events need to be officially recognized and publicly revealed. Truth telling... responds to the demand of justice for the victims and facilitate national reconciliation.471

Yasmin Naqvi notes, “[t]he right to truth would intermesh strategically with the broader objectives of international criminal law”.472

First, truth may help to reinstate or sustain peace because the exposure of the truth might enable societies to avert the occurrence of similar situations.473 This is arguably true of the truth to be derived from national criminal processes or other national mechanisms set up to search for and establish the truth. Secondly, truth may facilitate the process of reconciliation because divided societies can re-establish their relationship if they know the truth.474 The Chilean National Commission on Truth and Reconciliation affirmed that “only upon a foundation of truth will it be possible to meet the basic demands of justice and create the necessary conditions for achieving true national reconciliation”.475

We might say that “reconciliation as a goal cannot be imposed, and thus it must be built.”476

However, reconciliation requires victims’ knowledge of the past and acknowledgment particularly on the part of the wrongdoer.477 Thus, truth might be seen as an essential element for reconciliation.478 Nevertheless, the relationship between truth and peace, or truth and reconciliation, remains controversial because some argue that investigating and establishing the truth may open past wounds and lead to further conflicts rather than to peace and reconciliation.479

Thirdly, the truth can contribute to ending impunity because accountability can be ensured only if the truth about who committed past crimes is known.480 However, the relationship between truth and accountability is not always clear especially in case of criminal

471

ALICE H. HENKIN9 (ed). 1989. State Crimes: Punishment or Pardon. Queenstown,Md:Aspen Institute, pp.4-5 cited in TIETEL, RG, Above n 356 at 69

472 NAQVI, Above n 451 at 247 473 NAQVI, Above n 451 at 247 474 NAQVI, Above n 451 at 247 475

Supreme Decree No. 355 cited in NAQVI, Above n 451 at 247

476 OLSON, LM, Above n 384 at 277 477 OLSON, LM, Above n 384 at 277 478 OLSON, LM, Above n 384 at 277

479_{See OLSON, LM, Above n 384 at 275. Olson notes that “leaving the past alone is the best way to avoid}

upsetting a delicate process of transition.”

480

116

accountability (justice). Some writers, preferring truth over justice and drawing from Chilean and South African experience, argue, “truth reports should replace trials”.481

However, one may also argue that there was a parallel procedure of prosecution in South Africa.482

Fourthly, truth can also facilitate the “[reconstruction] of national identities because it unifies countries through dialogue about shared history.”483

It is argued, for example, that the establishment of the truth has significantly contributed to the reconstruction of German Unity.484 One may argue that truth can contribute to ‘the settling down of a historical record because the truth of what happened can be debated openly and vigorously in court, adding credibility to the evidence accepted in criminal judgment.’485

The exposure of the truth about past crimes might be considered as a form of reparatory justice for victims.486 Finally, the right to truth might help victims and the public to access public documents, which were kept secret.487This access would help to know the truth contained in these documents.

This multifaceted significance of truth, arguably, has led the UN Commission on Human Rights to recognize the right to truth. The Commission adopted Resolution 2005/66, which ‘recognizes the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights.’488

This right to truth is unequivocally stated in the work of Louis Joinet, an independent expert on impunity appointed by the UN Commission on Human Rights.489 In the 1997 final report, Joinet noted:

Every people have the inalienable right to know the truth about past events and about circumstances and reasons, which led, through the consistent pattern of gross violations of human rights, to the perpetration of aberrant crimes. Full and effective exercise of the right to the truth is essential to avoid any recurrence of such acts in the future.490

481_{OLSON, LM, Above n 384, at 278 citing Charles Krauthammer, ‘Truth :Not Trials: A way for the newly}

liberated to deal with the crime of the past, Washington Post, 9 September 1994, at A 27)

482 OLSON, LM, Above n 384, at 278 483 NAQVI, Above n 451, at 247 484 NAQVI, Above n 451, at 247 485 NAQVI, Above n 451, at 247 486 NAQVI, Above n 451, at 247 487 I NAQVI, Above n 451, at 247 488 NAQVI, Above n 451, at 248 489 NAQVI, Above n 451, at 259 490

117

This right belongs to the individual victim and his /her family as well as the society in general.491 Moreover, it clearly calls for full and effective exercise of the right to truth, which would help prevent the recurrence of similar violations in the future. The corollary of the latter is a “duty to remember” on the part of the State: “to be forearmed against the perversions of history that go under the name of revisionism or negotiationism, for the history of its oppression is part of a people’s national heritage and as such must be preserved.”492 Professor Diane Orentlincher, appointed by the Commission, has updated the principles contained in Mr. Louis Joinet’s report.493

The Updated principles on impunity incorporated the inalienable right to know the truth and guarantees to give effect to the right to know.

The abovementioned UN resolution and reports of experts not only recognize the right to the truth but they also provide the various components of the right. However, the legal status of such instruments and reports can be contested in that they are not in themselves legally binding instruments. Nevertheless, they reflect the emergence of the concept as well as the general acceptance of the significance of truth or the right to truth by the international community. The international legal status of truth may have relevance to domestic/national transitional processes. However, this study will not dwell on whether truth has emerged as a legal right or not, because establishing the truth is set as one of the explicit goals of the Ethiopian transitional justice process.494 What is more important here is to appreciate the significance of truth to transitional societies. Once we appreciate this significance, we may ask how the ‘truth’ can thus be appropriately established.