The right to the truth in international law: Fact or fiction?

International Review of the Red Cross

Volumn 88, Issue , 2006, Pages 245-273

  Naqvi, Yasmin ^a,b  

^a TMC Asser Institute   (Netherlands)

^b GRADUATE INSTITUTE OF INTERNATIONAL AND DEVELOPMENT STUDIES   (Switzerland)

Author keywords

[No Author keywords available]

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EID: 84855892143     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383106000518     Document Type: Article

References (206)

1. SC Res. 808 (1993), 22 February 1993, on the establishment of the International Criminal Tribunal for the former Yugoslavia, preambular para. 9.
2. SC Res. 955 (1994), 8 November 1994, on the establishment of the International Criminal Tribunal for Rwanda, preambular para. 7.
3. See BBC News, “Former Yugoslav President Slobodan Milosevic has died in the detention centre at the Hague tribunal: Reaction to the news”, 12 March 2006, available at: http://news.bbc.co.uk/2/hi/europe/ 4796704.stm#world (last visited on 23 March 2006).
4. “Former Yugoslav President Slobodan Milosevic has died in the detention centre at the Hague tribunal: Reaction to the news”.
5. Press Conference by the ICTY prosecutor, Carla Del Ponte, The Hague, 12 March 2006, available at: http://www.un.org/icty/latest-e/index.htm (last visited on 23 March 2006).
6. In the same press conference, the ICTY prosecutor also underscored the Trial Chamber decision of 16 June 2004, which rejected a defence motion to dismiss the charges for lack of evidence, thereby confirming, in accordance with Rule 98bis, that the prosecution case contained sufficient evidence capable of supporting a conviction on all 66 counts. However, this ruling cannot by any means be interpreted as implying that Milošević would have been found guilty. The only possible interpretation is that it “could” have done so. See Prosecutor v. Slobodan Milošević, Decision on Motion for Judgment of Acquittal, IT-02–54-T, 16 June 2004, at para. 9.
7. See the “Report of the independent expert to update the Set of Principles to combat impunity”, Diane Orentlicher, Addendum: “Updated set of principles for the protection and promotion of human rights through action to combat impunity”, UN Doc. E/CN.4/2005/102/Add.1, 8 February 2005 (hereinafter “Updated Principles on Impunity”). Principle 2 declares that “[e]very people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes.” Principle 4 articulates that “[irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims' fate.” Principle 1 states that it is an obligation of the state “to ensure the inalienable right to know the truth about violations.”
8. See Act No. 12/2597, 14 May 1992, Germany: Law Creating the Commission of Inquiry on “Working Through the History and the Consequences of the SED Dictatorship”, para. I.: “To work through the history and consequences of the SED [East Germany Communist Party, known as the German Socialist Union Party] dictatorship in Germany is a joint task of all Germans. It is particularly important for the purpose of truly unifying Germany.”
9. See Principle 11 of the “Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights and serious violations of humanitarian law”, CHR Res. 2005-35, 19 April 2005; ECOSOC Res. 2005/35, 25 July 2005, (hereinafter “Basic principles on remedies and reparation”) which states that “[r]emedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim's right to … access … relevant information concerning violations …” Principle 22(b) provides that the right to reparation of the victim includes, as a modality of satisfaction, the “[v]erification of the facts and full and public disclosure of the truth.” Principle 24 further provides that: “victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.”
10. William James, Essays in Pragmatism, Hafner Publishing Company, Inc., New York, 1948, p. 160.
11. Immanuel Kant, Critique of Pure Reason, ed. and transl. Paul Guyer & Allen W. Wood, Cambridge University Press, Cambridge, 1998 (emphasis added).
12. Matthijs Kronemeijer, “An Arab voice of compromise: Hazem Saghieh's In Defence of Peace (1997)”, MA thesis, Utrecht University, Department of Arabic, Modern Persian and Turkish Languages and Cultures, p. 71.
13. This is a restatement of the well-known statement: “Veritas est adaequatio rei et intellectus” — Truth is the equation of thing and intellect. See Thomas Aquinas, De Veritate Q.1, A.1&3
14. cf. Summa Theologiae Q.16.
15. Aristotle, Metaphysics, 1011b25.
16. Jacques Derrida, Prophets of Extremity, University of California Press, Berkeley, 1985, p. 3.
17. Jacques Derrida, Of Grammatology, transl. Gayatri Chakravorty Spivak (1967), Johns Hopkins University Press, Baltimore, 1976, pp. 7–8, 60–62 ff.
18. Benedetto Croce, History: Its Theory and Practice, transl. Douglas Ainslie, Harcourt, Brace and Co., New York, 1921, pp. 11–26
19. reprinted as “History and chronicle” in Hans Meyerhoff (ed.), The Philosophy of History in Our Time, Doubleday Anchor, New York, 1959, p. 45.
20. William James, Principles of Psychology, 1890, Harvard University Press, Boston, 1983, p. 940.
21. Walt Whitman, Preface to Leaves of Grass (1855), Bantam Books, New York, 1983.
22. Terms of Reference for the Commission of Truth and Friendship Established by the Republic of Indonesia and the Democratic Republic of Timor-Leste, 10 March 2005 (emphasis added).
23. Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977, Colin Gordon (ed.), Harvester Wheatsheaf, London, 1980, p. 114.
24. See also the translation by Meaghan Morris and Paul Patton (eds.), “Truth and Power”, Michel Foucault: Power, Truth, Strategy, Feral Publications, Sydney, 1979, pp. 131–132.
25. Joyce Appleby, Lynn Hunt and Margaret Jacob, Telling the Truth about History, W.W. Norton, New York, 1994, p. 213.
26. Report on Robert H. Jackson to the President on Atrocities and War Crimes, 7 June 1945, Department of State Bulletin, 10 June 1945, p. 1071.
27. For example, Richard J. Evans has argued that the “increase in scope and intensity of the Holocaust deniers' activities since the mid-1970s” reflects the “postmodernist intellectual climate”, In Defence of History, Granta Books, London, 1997, pp. 238–241.
28. See the discussion of his views in Ann Curthoys and John Docker, Is History Fiction?, UNSW Press, Sydney, 2006, pp. 209–211.
29. David John Cadwell Irving v. Penguin Books Limited and Deborah E. Lipstadt, [2000] EWHC QB 115.
30. EWHC QB., para. 13.141.
31. EWHC QB., para. 13.163.
32. See also See Richard J. Evans, Telling Lies about Hitler: The Holocaust, History and the David Irving Trial, Verso, London, 2002, p. 198.
33. Steven Aschheim, Culture and Catastrophe, Macmillan, Basingstoke, 1996, pp. 13 and 193.
34. Dan Stone, Constructing the Holocaust: A Study in Historiography, Vallentine Mitchell, London and Portland, 2003, p. 16.
35. See Juan E. Méndez, “The Right to Truth”, in Christopher C. Joyner (ed.), Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998, St. Agnes, Erès, 1998, p. 264 (“…the responsible state must comply … [with the right to truth] to the limit of its possibilities and in good faith”).
36. See Statute of the International Court of Justice, Art. 38(1)(b).
37. Theodor Meron, Human Rights and Humanitarian Law as Customary Law, Clarendon Press, Oxford, 1989, p. 93.
38. See the meeting cited by L. Despouy, Special Rapporteur on States of Emergency in his 8th Annual Report, UN Doc. E/CN.4/Sub.2/1995/29 Corr. 1, according to which the experts concluded that the right to truth has achieved the status of a norm of customary international law. For a different view, see Mendez, above note 36, p. 260, fn. 9.
39. See also The Restatement (Third) of the Foreign Relations Law of the United States of 1987, § 701
40. Meron, above note 39, p. 94.
41. Rule 117 in Customary International Humanitarian Law, Volume I, Rules, ICRC, Cambridge University Press, 2005, p. 421.
42. “First Report of the Working Group on Enforced or Involuntary Disappearances to the Commission on Human Rights”, UN Doc. E/CN.4/1435, 22 January 1981, para. 187, and Annual Report of the Inter-American Commission of Human Rights, 1985–1986, OEA/Ser.L//V/II.68, Doc. 8 rev 1, 28 September 1986, p. 205.
43. Inter-American Commission, Report No. 136/99, of 22 December 1999, Case of Ignacio Ellacría et al., para. 221.
44. See the explanation by Mr Bertil Wennergren, member of the Human Rights Committee, in his Individual Opinion in the cases: R. A. V. N. et al. (Argentina), communication Nos. 343, 344 and 345/1988, Decision of inadmissibility of 26 March 1990, UN Doc. CCPR/C/38/D/343/1988 (Appendix)
45. S. E. (Argentina), communication No. 275/1988, Decision of inadmissibility of 26 March 1990, UN Doc. CCPR/C/38/D/275/1988 (Appendix)
46. “Concluding observations of the Human Rights Committee: Algeria”, UN Doc. CCPR/C/79/Add.95, of 18 August 1998, para. 10
47. “Concluding observations of the Human Rights Committee: Uruguay”, UN Doc. CCPR/C/79/ Add.90, of 8 April 1998, para. C.
48. Views of 3 April 2003, Case of Lyashkevich v. Belarus, Communication No 887/1999, UN Doc. CCPR/C/ 77/D/950/2000, para. 9.2.
49. Communication No 887/1999., para. 11
50. Views adopted on 30 March 2005, Khalilova v. Tajikistan case, Communication No. 973/ 2001, UN Doc. CCPR/C/83/D/973/2001;
51. Views adopted on 16 November 2005, Valichon Aliboev v. Tajikistan case, Communication No. 985/2001, UN Doc. CCPR/C/85/D/985/2001.
52. UN Doc. E/CN.4/Sub.2/1991/20, Annex I, p. 45.
53. See, inter alia, Judgment of 25 May 1998, Kurt v. Turkey, Application No. 24276/94;
54. Judgment of 14 November 2000, Tas v. Turkey, Application No. 24396/94;
55. Judgment of 10 May 2001, Cyprus v. Turkey, Application No. 25781/94.
56. Judgment of 10 May 2001, Cyprus v. Turkey, Application No. 25781/94, para. 136
57. see also, inter alia, Judgment of 18–12–1996, Aksoy v. Turkey, Application No. 21987/93;
58. Judgment of 28 March 2000, Kaya v. Turkey, Application No. 22535/93).
59. This also applies where non-state parties may be involved: Tanrikulu v. Turkey, 1999-IV Eur. Ct. H.R. 459 (1999).
60. Amnesty International vs, Sudan case, Communications No. 48/90, 50/91, 52/91, 89-93 (1999), para. 54. See Art. 19(3) of the African Charter on the Rights and Welfare of the Child.
61. African Union Doc. DOC/OS(XXX)247).
62. Inter-American Commission, Report No. 136/99, of 22 December 1999, Case of Ignacio Ellacría et al. v. El Salvador, para. 221.
63. See also Annual Report of the Inter-American Court of Human Rights, 1985–1986, OEA/Ser.L//V/II.68, Doc. 8 rev 1, of 28 September 1986, p. 205
64. Annual Report of the Inter-American Court of Human Rights, 1987–1988, OEA/Ser.L/V/II. 74, Doc. 10 rev 1, of 16 September 1988, p. 359.
65. Inter-American Commission, Report No. 136/99, of 22 December 1999, Case of Ignacio Ellacría et al. v. El Salvador, para. 221.
66. Inter-American Court of Human Rights Judgment of 29 July 1988, Velásquez Rodríguez case, in Series C: Decisions and Judgments, No. 4, para. 181, p. 75
67. Inter-American Court of Human Rights, Judgment of 20 January 1989, Godínez Cruz case, in Series C: Decisions and Judgments, No. 5
68. Judgment of 3 November 1997, Castillo Páez case
69. Judgment of 24 January 1998, Blake case
70. Judgment of 25 November 2000, Bamaca case.
71. Inter-American Court of Human Rights, Judgment of 24 January 1998, Blake case, para. 97 and Judgment of 25 November 2000, Bamaca case, para. 201.
72. Judgment of 14 March 2000, Barrios Altos case, para. 48.
73. See also Madeleine Albright, US Ambassador to the UN, in her statement to the Security Council at the time of the adoption of Resolution 827: “Truth is the cornerstone of the rule of law, and it will point towards individuals, not peoples, as perpetrators of war crimes. And it is only the truth that can cleanse the ethnic and religious hatreds and begin the healing process”, Provisional Verbatim Record of the 3217th Meeting, 25 May 1993, SC Doc. S/PV 3217.
74. See e.g. SC Res 1606 (2005) on Burundi, preambular paras. 2 and 7
75. SC Res. 1593 (2005) on Darfur, Sudan, para. 5
76. SC Res. 1468 (2003) on the Democratic Republic of Congo, para. 5
77. SC Res. 1012 (1995) on Burundi, preambular para. 8
78. SC Res. 935 (1994) on Rwanda
79. SC Res. 780 (1992) on the former Yugoslavia.
80. See GA Res. 57-105 (2003) on East Timor, para. 12
81. GA Res. 57-161 (2003) on Guatemala, para. 17
82. GA Res. 55-118 (2001) on Haiti, para. 7
83. GA Res. 53-187 (2000) on Haiti, para. 8
84. GA Res. 48-149 (1993) on El Salvador, para. 4
85. GA Res. 42-147 (1987) on Chile, para. 10
86. GA Res. 40-145 (1985) on Chile, para. 6
87. GA Res. 35-188 (1980) on Chile, paras. 6–8
88. GA Res. 34-179 (1979) on Chile
89. GA Res. 33-172 (1978) on Cyprus, para. 1
90. GA Res. 32-128 (1977) on Cyprus, para. 1
91. GA Res. 32-118 (1977) on Chile, para. 6
92. GA Res. 3450 (XXX) on Cyprus, preambular para. 5 and para. 1
93. GA Res. 3448 (XXX) on Chile, para. 2.
94. See Press Release SG/SM/9400, Secretary-General Urges Respect for Ceasefire as Colombia Peace Talks Open, 1 July 2004: “The Secretary-General reiterates his belief that the rights of truth, justice and reparations for victims must be fully respected.”
95. Statement by Mary Robinson, United Nations High Commissioner for Human Rights, at the 55th Annual DPI/NGO Conference, “Rebuilding Societies Emerging from Conflict: A Shared Responsibility”, 9 September 2002: “[Mechanisms such as TRCs] respects the right of nations to learn the truth about past events. Full and effective exercise of the right to the truth is essential if recurrence of violations is to be avoided.”
96. See the “Report of the assessment mission on the establishment of an international judicial commission of inquiry for Burundi”, S/2005/158, 11 March 2005
97. “Report of the International Commission of Inquiry on Darfur to the Secretary-General”, S/2005/60, 1 February 2005, para. 617
98. “Report of the International Commission of Inquiry on East Timor to the Secretary-General”, January 2000, UN Doc. A/54/726, S/2000/59, 31 January 2000, para. 146.
99. “Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda”, UN Doc. S/1999/1257, 16 December 1999.
100. Report of the Secretary-General pursuant to General Assembly Resolution 53-35, “The fall of Srebrenica”, UN Doc. A/54/549, 15 November 1999. See para. 7: “I hope that the confirmation or clarification of those accounts [of the fall of Srebrenica contained in books, journal articles and press reports] contributes to the historical record on this subject.”
101. “Question of the impunity of perpetrators of human rights violations (civil and political)”, final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119, UN Doc. E/CN.4/Sub.2/1997/ 20/Rev.1., Annex I, Principle 1.
102. final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119., para. 17.
103. final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119., Principle 4, “The victims' right to know”.
104. final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119., Principle 2, “The inalienable right to the truth”.
105. final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119., Principle 5, “Guarantees to give effect to the right to know”.
106. See “Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law”, CHR Res. 2005/35, Annex, Principle 22.
107. Meron, above note 39, p. 89.
108. See the Peace Agreement between the government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Art. XXVI) and The Truth and Reconciliation Commission Act 2000 of Sierra Leone (Art. 6); the Chilean Supreme Decree [Decreto Supremo] No. 355 of 25 April 1990, establishing the Truth and Reconciliation Commission
109. El Salvador: Mexico Peace Agreements — Provisions Creating the Commission on Truth, Mexico City, 27 April 1991
110. German Law No. 12/2597 of 4 May 1992, establishing the Commission of Inquiry on “Working through the History and the Consequences of the SED Dictatorship”
111. the Terms of Reference for the Commission of Truth and Friendship of Timor-Leste, of 10 March 2005
112. The National Reconciliation Commission Act of Ghana, 2002
113. South Africa's Promotion of National Unity and Reconciliation Act No. 34 of 1995.
114. See also Priscilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, Routledge, New York, 2001.
115. Peruvian Supreme Decree [Decreto Supremo] No. 065–2001-PCM of 2 June 2001, preambular para. 4
116. Agreement on the establishment of the Commission to clarify past human rights violations and acts of violence that have caused the Guatemalan population to suffer, Oslo, 23 June 1994, preambular para. 2.
117. See Uganda's Legal Notice Creating the Commission of Inquiry into Violations of Human Rights, The Commission of Inquiry Act, Legal Notice No. 5, 16 May 1986, which deems it “expedient” to inquire into the causes of and possible ways to prevent the serious violations of human rights falling under the mandate.
118. The South African Promotion of National Unity and Reconciliation Act 1995, Act 95–34, 26 July 1995, in preabular para. 3, finds that “it is deemed necessary to establish the truth in relation to past events as well as the motives for and circumstances in which gross violations of human rights have occurred, and to make the findings known in order to prevent a repetition of such acts in the future.”
119. Preambular para. 8 of the Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia, enacted by the National Transitional Legislative Assembly on 12 May 2005 and approved by the Chairman of the National Transitional Government of Liberia on 10 June 2005.
120. Art. XIII of the Comprehensive Peace Agreement, City of Accra, Republic of Ghana, 18 August 2003, provides for the establishment of a Truth and Reconciliation Commission to “provide a forum that will address issues of impunity, as well as an opportunity for both victims and perpetrators of human rights violations to share their experiences in order to get a clear picture of the past to facilitate genuine healing and reconciliation.”
121. This was also the case for Sierra Leone (Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Art. XXVI))
122. Guatemala (the Historical Clarification Commission (CEH) was established on 23 June 1994 as part of peace agreements between the Guatemalan government and the National Guatemalan Revolutionary Unit (URNG))
123. El Salvador (the Commission on the Truth for El Salvador was mandated by the UN-brokered peace agreements of 16 January 1992).
124. See Updated Principles on Impunity, Principle 3, and the Report of the independent expert, para. 19, above note 8.
125. The mandate of the Commission for Reception, Truth and Reconciliation in East Timor, which authorizes the Commission to consider human rights violations over a 25-year period from 1974, provides a good example of this. See section 13.2 Regulation No. 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, UNTAET/REG/2001/10, 13 July 2001.
126. See Establishment of a Commission for Reception, Truth and Reconciliation in East Timor., section 13 entitled “Truth” that identifies six ways in which the Commission should seek to establish the truth, namely by inquiring into: (1) the extent of human rights violations, including those part of a systematic pattern of abuse; (2) the nature, causes and extent of human rights violations, including the antecedents, circumstances, factors, context, motives and perspectives that led to such violations; (3) which persons, authorities, institutions and organisations were involved in the violations; (4) whether the violations were the result of deliberate planning, policy or authorisation on the part of any state or any of its organs or of any political organisation, militia group, liberation movement, or other group or individual; (5) the role of both internal and external factors in the conflict; and (6) accountability, political or otherwise, for the violations.
127. National Reconciliation Commission Report of Ghana, 16 May 2005, para. 1.1.2.
128. Report of the Chilean National Commission on Truth and Reconciliation, University of Notre Dame Press, Notre Dame, Indiana, 1993, Vol. I/II, Part 1, Chapter 1.
129. Guatemala: Memory of Silence, Commission for Historical Clarification (CEH), February 1999, Prologue.
130. Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. I, 5 October 2004, p. 79.
131. M. Ignatieff, “Articles of Faith”, Index on Censorship, Vol. 25, No. 5, 1996, p. 113.
132. The former President of the Inter-American Court of Human Rights, Pedro Nikken, has argued that the discovery of truth fulfils a dual function: “First, it is useful for society to learn, objectively, what happened in its midst, which translates into a sort of collective catharsis. And second, it contributes to creating a collective conscience as to the need to impede the repetition of similar acts…”, quoted in Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission, Vol. I, 5 October 2004, p. 79.
133. See Méndez, above note 36, at p. 269, citing Thomas Nagel.
134. See inter alia: Customary International Humanitarian Law, Volume II, Practice, Part. 2, ICRC, Cambridge University Press, Cambridge, 2005, pp. 2766–2767
135. Bosnia and Herzegovina, Law on Missing Persons, 2004 (on file with author).
136. Law No. 975 of 25 July 2005, entitled “Law on justice and peace”. In Article 7 it defines the right to truth as belonging to society. However, this legislation has been criticized by the OHCHR as not leading to the truth because there is no condition of truth-telling for judicial benefits, the time allowed for investigations is limited and there are few incentives for the Attorney-General's office to search for the truth.
137. UN Doc. E/CN.4/2004/88, para. 20. See also Mexican Federal Act on Access of Information (Ley Federal de Acceso a la Información) enacted in 2002 that bars the withholding of documents that describe “grave violations” of human rights, and the Stasi Files Act of Germany of 1991, which facilitates individual access to personal data stored by the State Security Service [Stasi - former East German secret police] in order to clarify what influence the service had on the individual's life and ensures and promotes “the historical, political, and juridical reappraisal of the activities of the State Security Service.”
138. Stasi Files Act (Stasi-Unterlagengesetz, StUG), Federal Law Gazette I, 1991, p. 2272, as amended.
139. See inter alia: Agreement of 1 September 2003 of the National Chamber for Federal Criminal and Correctional Matters (Cámara Nacional en lo Criminal y Correccional Federal), case of Suárez Mason, Rol. 450
140. Agreement of 1 September 2003 of the National Chamber for Federal Criminal and Correctional Matters, case of Escuela Mecánica de la Armada, Rol. 761
141. Judgment of 8 December 2004 of the National Chamber for Federal Criminal and Correctional Matters, case of Maria Elena Amadio, Rol. 07/04-P
142. Judgment of the Oral Tribunal in Criminal Federal Matters No. 3 (Tribunal Oral en lo Criminal Federal), case of Carlos Aléberto Telleidín and others — homicide (Amia Case), Rol. 487–400.
143. Chamber for Federal Criminal and Correctional Matters, Decision of 18 May 1995, case of Maria Aguiar Lapaó, Rol. 450.
144. Supreme Court of the Nation (Argentina), Judgment of 14 June 2005, S. 1767. XXXVIII, “Simón, Julio Héctor y otros s/ privación ilegítima de la libertad” case, Rol. No. 17.768.
145. “Simón, Julio Héctor y otros s/ privación ilegítima de la libertad”, paras. 15 and 19.
146. See inter alia Constitutional Court of Colombia, Judgment of 20 January 2003, Case T-249/03
147. Decision on Admissibility and Merits of 7 March 2003, “Srebrenica Cases”, case Nos. CH/01/8365 et al., para. 220 (4)
148. “Srebrenica Cases”, paras. 181 and 220(3).
149. Decision on admissibility and merits of 11 January 2001, Palic v. Republika Srpska, Case No. CH/99/ 3196
150. Decision on admissibility and merits of 9 November 2001, Unkovic v. Federation of Bosnia and Herzegovina, Case No. CH/99/2150.
151. Meron, above note 35, p. 89.
152. See inter alia: Human Rights Committee, General Comment No. 29, States of Emergency
153. Inter-American Court of Human Rights, Advisory Opinion OC-8/87 of 30 January 1987
154. Advisory Opinion OC-9/87 of 6 October 1987.
155. European Court on Human Rights (Judgment of 25 May 1998, Kurt v. Turkey, Application No. 24276/ 94
156. Judgment of 14 November 2000, Tas v. Turkey, Application No. 24396/94;
157. Judgment of 10 May 2001, Cyprus v. Turkey, Application No. 25781/94);
158. Inter-American Court of Human Rights (Judgment of 29 July 1988, Velásquez Rodríguez case
159. Judgment of 20 January 1989, Godínez Cruz case
160. Judgment of 3 November 1997, Castillo Páez case
161. Judgment of 24 January 1998, Blake case, para. 97
162. Judgment of 25 November 2000, Bamaca case
163. Judgment of 25 November 2003, Myrna Mack Chang case
164. Judgment of 8 July 2004, Case of the Gómez-Paquiyauri brothers v. Peru
165. Judgment of 5 July 2004, Case of 19 Merchants v. Colombia
166. Judgment of 7 September 2004, Case of Tibi v. Ecuador
167. Judgment Molina Theissen case (Reparations), Judgment of 15 June 2005, Case of Moiwana Village v. Suriname
168. Judgment of 22 November 2004, Case of Carpio-Nicolle v. Guatemala
169. Judgment of 1 March 2005, Case of Serrano-Cruz sisters v. El Salvador
170. Judgment of 15 September 2005, Case of the Massacre of Mapiripan v. Colombia).
171. See Jane Mayer, “Outsourcing torture: The secret history of America's “extraordinary rendition” program”, The New Yorker, 14 February 2005, available at: http://www.newyorker.com/fact/content/ ?050214fa_fact6 (last visited 4 April 2006).
172. See Maher Arar v. John Ashcroft and others, 414 F. Supp. 2d 250
173. 2006 US Dist. LEXIS 5803, 16 February 2006.
174. See also Khaled El-Masri v. George Tenet, et al., 2006 US Dist. LEXIS 34577, 12 May 2006, in which the plaintiff, a German citizen, claimed to be an innocent victim of the United States' “extraordinary rendition” program and, through three causes of action, sued defendants, including the former Director of the Central Intelligence Agency (CIA), private corporations and unknown employees of both the CIA and the corporations. The District Court ordered that the government's claim of the state secrets privilege was valid and granted the motion to dismiss.
175. On 27 February 2006, Algeria's full cabinet, with President Abdelaziz Bouteflika presiding, approved the “Decree Implementing the Charter for Peace and National Reconciliation”. The amnesty excludes those who “committed, or were accomplices in, or instigators of, acts of collective massacres, rape, or the use of explosives in public places.”
176. See Garay Hermonsilla et al. v. Chile, Case 10.843, Report No. 36/96, Inter-Am, CHR, OEA/Ser.L/V/II.95 Doc. 7 rev. at 156 (1997).
177. See The Azanian Peoples Organization (AZAPO) v. The President of the Republic of South Africa and others., Case CCT 17/96, (South Africa), 1996 (hereinafter the AZAPO case), para. 22.
178. The term “accountable amnesty” is borrowed from Professor Ronald C. Slye, “The Legitimacy of Amnesties Under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?”, Virginia Journal of International Law, Vol. 43, p. 173, at p. 245, to refer to an amnesty that provides some accountability and more than minimal relief to victims. According to Prof. Slye, such an amnesty, which could be accorded foreign recognition, must be created according to democratic structures and cannot apply to those most responsible for serious international crimes, among other conditions.
179. See also William W. Burke-White, “Reframing Impunity: Applying Liberal International Law Theory to an Analysis of Amnesty Legislation”, Harvard International Law Journal, Vol. 42, No. 2 (2001), (emphasising the legitimising effect of democratically elected governments enacting amnesties)
180. Michael P. Scharf, “The Amnesty Exception to the Jurisdiction of the International Criminal Court”, Cornell International Law Journal, Vol. 32 (1999), (noting the factors the ICC should consider in deciding whether to recognize an amnesty: whether an offence attaches to a duty to prosecute, whether the armed conflict would have ended without the recourse to amnesty and whether the state has instituted a truth mechanism)
181. John Dugard, “Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?”, Leiden Journal of International Law, Vol. 12, No. 4 (1999), p. 1001 (suggesting that amnesties accorded by a Truth and Reconciliation Commission, such as that in South Africa, after investigation “may contribute to the achievement of peace and justice in a society in transition more effectively than mandatory prosecution”).
182. See Principle 7 of the Princeton Principles on Universal Jurisdiction, adopted by a group of international law experts in 2001, which proposed that “Amnesties are generally inconsistent with the obligation on states to provide accountability for serious crimes under international law”, Principle 7, Princeton Principles on Universal Jurisdiction 28 (2001), Princeton University Program in Law and Public Affairs, Princeton University, Princeton, 2001.
183. Meron, above note 35, pp. 35 and 113.
184. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, ICJ Reports 1986, 14 (1986), pp. 98–108.
185. Méndez, above note 36, p. 255.
186. Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7th edition, Routledge, London, 1997, p. 48.
187. See Méndez, above note 36, at p. 256 (“…these obligations are of universal application and are fed by experiences that have little to do with the transition to democracy”).
188. See Ian Brownlie, Principles of Public International Law, 3rd edition, 1979, p. 29.
189. Martti Koskenniemi, “Between impunity and show trials”, 6 Max Planck UNYB (2002), p. 34.
190. See the discussion on Morgenthau's argument as enunciated in “Die internationale Rechtspflege, ihr Wesen und ihre Grenzen”, 1929, pp. 62–72
191. in Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, Cambridge University Press, Cambridge, 2002, pp. 440–445.
192. Koskenniemi, “Between impunity and show trials”, p. 32.
193. See also the criticisms of the individualization of responsibility for acts of genocide committed in Rwanda, which may be oversimplifying the situation and distorting the group element in the perpetration of crimes: Jean Marie Kamatali, “The challenge of linking international criminal justice and national reconciliation: The case of the ICTR”, Leiden Journal of International Law, Vol. 16, No. 1, March 2003, p. 124.
194. Thus, Koskenniemi points out that in the case of the Milosevic trial in The Hague, “…because the context is part of the political dispute, the trial of Milosevic can only, from the latter's perspective, be a show trial participation which will mean the admission of Western victory.” Koskenniemi, Leiden Journal of International Law., pp. 17–18.
195. Antoine Garapon, “Three Challenges for International Criminal Justice”, Journal of International Criminal Justice, Vol. 2, No. 3 (2004), p. 724.
196. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Penguin Books, New York, 1994, p. 253.
197. For a discussion of this relationship, see William A. Schabas & Shane Darcy, Truth Commissions and Courts: The Tension Between Criminal Justice and the Search for Truth, Kluwer Academic Publishers, Dordrecht, 2004.
198. Decision on the Request of the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman (SCSL-2003–08-PT) [3257–3264], 29 October 2003.
199. Decision on Appeal by the Truth and Reconciliation Commission of Sierra Leone (“TRC” or “The Commission” and Chief Samuel Hinga Norman JP against the Decision of His Lordship, Mr Justice Bankole Thompson, delivered on 20 October 2003, to Deny the TRC's Request to Hold a Public Hearing with Chief Hinga Norman JP, (SCSL-2003–08-PT), 28 November 2003.
200. Before the Special Court for Sierra Leone, a witness may request that testimony delivered in proceedings before that Court will not be used in a subsequent prosecution of that witness (Rule 90(E) of the SCSL Rules of Procedure and Evidence). The Rule is derived from Rule 90(E) of the ICTR Rules of Procedure and Evidence, in accordance with Art. 14(1) of the SCSL Statute.
201. For arguments in this direction, see William A. Schabas, “A Synergic Relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone”, in William A. Schabas & Shane Darcy, Truth Commissions and Courts: The Tension Between Criminal Justice and the Search for Truth, Kluwer Academic Publishers, Dordrecht, 2004, pp. 30–35.
202. On 12 July 2001, the ICTY added Rule 62ter of the Rules of Procedure and Evidence, which sets forth the procedure for accepting a plea arrangement.
203. Sentencing Judgment, Plavšić (IT-00–39&40/1-S), Trial Chamber III, 27 February 2003.
204. Michael P. Scharf, “Trading justice for efficiency”, Journal of International Criminal Justice, Vol. 2, No. 4 (2004), pp. 1070–1081, at p. 1080.
205. Mirjan Damaška, “Negotiated Justice in International Criminal Courts”, Journal of International Criminal Justice, Vol. 2, No. 4 (2004), pp. 1018–1039, at p. 1029.
206. For its part, the ICC Statute allows “admissions”, which have to follow the strict conditions required for admission statements. They must be supported, inter alia, by materials supplementing the prosecution's charges as well as any other evidence presented by the parties. A judge can request that the prosecution present additional evidence, including the testimony of witnesses (ICC Statute, Art. 65).