International guidelines for the creation and operation of truth commissions: A preliminary proposal

Law and Contemporary Problems

Volumn 59, Issue 4, 1996, Pages 173-179

  Hayner, Priscilla B ^a  

^a NEW SCHOOL FOR SOCIAL RESEARCH   (United States)

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EID: 0038776555     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: 10.2307/1192197     Document Type: Article

References (13)

1. The first truth commission to gain significant international attention was the National Commission on the Disappeared in Argentina, which was in operation from 1983 to 1984, see NUNCA MAS: THE REPORT OF THE ARGENTINE NATIONAL COMMITTEE OF THE DISAPPEARED (1st Am. ed. 1986), but the term "truth commission" was not used generically to describe these investigatory bodies until after the U.N. Commission on the Truth released its report in early 1993.
2. See From Madness to Hope: The 12-Year War in El Salvador, Report of the Commission on the Truth for El Salvador, Annex at 189-90, U.N. Doc. S/25500 (1993) [hereinafter El Salvador Peace Accord].
3. U.N. Subcommission for Prevention of Discrimination and Protection of Minorities Annex II at 10, U.N. Doc. E/CN.4/Sub.2/1996/18 (1996) [hereinafter Draft Principles]. This set of principles is not final; it will be further revised by the U.N. Subcommission meeting in August 1997. As of publication, the final set of principles has not been officially released, although a draft of the final document is included as an appendix to this Symposium.
4. Id. at 11, 13-14, principles 6(b), 12-18.
5. Under the heading "The Duty to Remember," the Draft Principles state the following: A People's knowledge of the history of their oppression is part of their heritage and, as such, shall be preserved by appropriate measures in fulfillment of the State's duty to remember. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments. Id. at 10, principle 2.
6. My forthcoming book will explain the case of Mozambique in detail. Publication is expected in 1998.
7. For example, some point to the African Charter on Human and Peoples' Rights' guarantee of a "right to receive information," and to the right to "seek, receive and impart information" guaranteed in Article 19 of the Universal Declaration of Human Rights. G.A. Res. 217 (Dec. 10, 1948). As well, in the Velásquez Rodríquez case of July 29, 1988, the Inter-American Court concluded that the state has a duty to investigate the fate of the disappeared and disclose the information to relatives. Case 4, Inter-Am. L.H.R. 35, OEH/ser LIV/111.19, doc. 13 (1988).
8. Draft Principles, supra note 2, at 10, principle 1 ("The Inalienable Right to the Truth").
9. This is not to dispute the benefits of undertaking investigations at the point of transition, as is done in so many countries. But in some circumstances, this may not be possible or may not best suit the interests of a country.
10. The case of Cambodia presents an interesting example of how non-national players sometimes push a country to confront its past. The main project in Cambodia to document the Khmer Rouge crimes of the 1970s is through a U.S.-funded organization, growing out of an initiative of the U.S. government (originally funded through the Cambodia Genocide Justice Act, Pub. L. No. 103-236, 108 Stat. 486 (1994), to fund the investigation of Khmer Rouge atrocities). But, for a host of reasons, it is still not clear how much interest there is from Cambodians in this work. On the other side, there are cases where a government has had trouble obtaining international financial support for truth-seeking initiatives, because the international community providing it with aid believes that other development priorities are more important. Malawi may be such a case.
11. The Draft Principles state, "Irrespective of any legal proceedings, the families of victims shall have the right to know the truth about the fate of their relatives. In cases of enforced disappearance or of abduction of children, this right shall be imprescriptible." Draft Principles, supra note 2, at 10, principle 3. Elsewhere, José Zalaquett argues that "[t]he truth must be complete ... [including] what is the fate of the victims, individually, who gave the orders and who carried them out." See José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints, in STATE CRIMES: PUNISHMENT OR PARDON 30 (Aspen Institute, 1989).
12. In contrast to other commissions to date, South Africa offers an example of extensive public participation in the creation of its Truth and Reconciliation Commission, including extensive parliamentary hearings on draft legislation and submissions of comment from many organizations and other interested parties.
13. This approximates the language in the mandates of the El Salvador and South African truth commissions, respectively. See El Salvador Peace Accord, supra note 1, at 190; § 4(a)(i) of Promotion of National Unity and Reconciliation Act of 1995 (S. Afr.).