BACKGROUND GUIDE FOR UHRC

HUMAN RIGHTS COUNCIL

AGENDA:  ENSURING THE IMPLEMENTATION AND PROTECTION OF RIGHT TO TRUTH .

LETTER FROM THE EXECUTIVE BOARD

Dear Delegates,

It is with immense pleasure that we welcome you to the Human Rights Council at

CHINMAYA VIDYALAYA Model United Nations 2018. We are extremely delighted

to be serving as the Executive Board members of this committee and hope to see

you engage in heated debate, deliberations and discussions.

The Human Rights Council is an inter-governmental body within the United

Nations system responsible for strengthening the promotion and protection of

human rights around the globe and for addressing situations of human rights

violations and make recommendations on them.

Lot of knowledge is required to produce intellectual debate and to make the

committee successful, so we request all of you to research thoroughly and

perform well to simulate a proper Human Rights Council.

The following pages intend to guide you with the nuances of the agenda as well as

the Council. The Guide touches upon all the different aspects that are relevant

and will lead to fruitful debate in the Council However please do not limit yourself

to the background guide but use it just as a reference for your research. Do not

hesitate to contact us regarding any queries, whether procedural or regarding the

agenda.

Looking forward to an engaging debate in committee. See you soon! Regards,

Soumithkasetty-chairperson

Vedantkabra – vice chairperson

Sanshreykeshri -(Rapporteur)

Contents I. Introduction ............................................................................................................................. 3

II. Case studies on the right to truth in relation to gross violations of human rights................... 7 A.

Argentina.............................................................................................................................. 7 B.

Tunisia................................................................................................................................ 13 III. Work of

the truth-seeking instruments .............................................................................. 19 A. Truth

commissions............................................................................................................. 19 B. Truth

trials.......................................................................................................................... 23 C. Civil society

organizations................................................................................................. 24 D. International

organizations................................................................................................. 27 IV. Recommendations and

obligations.................................................................................... 30 A. Fulfillment of state responsibilities

on transitional justice and the right to truth .............. 30 1. On the implementation of the right to

truth.................................................................... 30 2. On the government approach

......................................................................................... 31 3. On the Judiciary

............................................................................................................. 32 4. On the legislation on the

conduct of law enforcement officials..................................... 34 5. On

reconciliation............................................................................................................ 34 B. Prevention of

future violations and the protection of the right to truth ............................. 36 1. Recognition of the right

to truth as an autonomous and inalienable right not subject to

limitations.............................................................................................................................. 36 2.

Structural reforms........................................................................................................... 37 3. Historical

reconciliation ................................................................................................. 37 4. Teaching about the

facts and the truth of history........................................................... 37 5. Memorialization

............................................................................................................. 38 6. Gender sensitive approach

............................................................................................. 39 7. Smart

amnesty................................................................................................................ 39 V.

Conclusion............................................................................................................................. 41 Bibliography

................................................................................................................................. 42 3 I. Introduction

Right to truth is a part of transitional justice, which is a framework that outlines the emergence of states

from civil war or authoritarian rule. It is a specific right that exists in the cases of gross violations of

human rights or grave violations of international humanitarian law; and defines the right of the victims,

their families, and the community in general; to know the truth about the fate of the deceased or the

survivor, the identity and motivation of the perpetrators, the specific circumstances in which the

atrocities have ripened, the exact details of how the crimes were committed such as the date, time, and

methods, and location of burial site of the deceased if any, and access to it. Transitional justice is

sometimes also called the peace process. Non-conflict and peace are very different concepts, and

achieving peace requires a slow and challenging process. It includes reconciliation, facing the abuses of

the past, prosecutions, reparations, establishment of accountability, and reforms to prevent the crime

from happening again. It is also necessary to recognize structural problems and systematic abuses. Right

to truth is one of the fundamental human rights. It is a right on its own; that is, even if it is closely

related to other human rights; such as right to mourn, right to a proper grave, the right not to be

subjected to torture or cruel, inhuman and degrading treatment or punishment, and the right not to be

subjected to imprisonment for inability to fulfil a contractual obligation, the right to an effective remedy, the right to legal and judicial protection, the right to family life, the right to an effective investigation,

the right to a hearing by a competent, independent, and impartial tribunal, right to seek and impart

information, and the right to obtain reparation; it is also a right that exists on its own without being

derived from or being a collection of other rights.1 Right to truth is inalienable; that is, any human is

entitled to exercise their right to truth, given the circumstances amount to a situation that gives

emergence to a situation where gross violations of human rights took place. Right to truth is nonderogable;

that is, it cannot be suspended no matter what the circumstances are, including the state of

emergency. The right to truth of the relatives of 1 Office of the United Nations High Commissioner for

Human Rights, ‘Study on the Right to the Truth: Report of the Office of the United Nations High

Commissioner for Human Rights’. 4 the victims, including the victims of forced disappearance, is codified

in the Article 32 of the Additional Protocol I to the Geneva Conventions of 12 August 1949.2 It was

during the process after the Second World War that the discussions on the right to truth became

widespread, such as the Nuremberg trials in Germany and truth trials in Argentina. Initially it was

conceived to be a right that is emergent mostly in cases of forced disappearance, but later developed to

include other gross violations of human rights such as torture or ill-treatment, summary executions,

abductions, arbitrary arrest and detention, war crimes, genocide, excessive use of force by the law

enforcement officials, forced and large-scale population displacement, indiscriminate attacks or

deliberate targeting of civilians and civilian objects in situations of armed conflict, systematic sexual

violations and systematic violations of right to life or property. Right to truth has both individual and

societal dimensions. Individuals are entitled to know the truth of their -or in case the victim has

deceased or disappeared, their family member’s fate to its full extent in situations where they are

affected by gross violations of human rights. According to the Principle 4 of the Updated Set of

Principles for the Protection and Promotion of Human Rights Through Action to Fight Impunity

(E/CN.4/2005/102/Add.1), the victims and their families have the inalienable right to know the truth

about circumstances in which gross human rights violations took place and, in the event of death or

disappearance, the victim’s fate.3 Such fate includes the knowledge of the victim’s identity,

perpetrators’ identity, the whole of the events, the circumstances that have led up to the crime, the

chain of command and information regarding the identity of those who gave the orders, instructions

given in advance of the act, and the reasons and motivations of the perpetrators. In the case of forced

disappearance, these also coincide with the information on the whereabouts of the victim and whether

they are alive or have deceased. Such information also makes possible the deceased and their family to

have their right to a proper grave, and the family to exercise their right to mourn. While the victim and

their family are entitled to the right to truth as they are directly affected by the atrocities, the whole of

the society is also entitled to know the truth of the events to its full extent in cases of gross violations of

human rights or grave violations of international humanitarian law. Principle 2 of the 5 Principles also

outlines that every person has the right to know the truth about the heinous crimes of the past,

together with the circumstances and reasons.4 This provides for the society to know its history and have

complete cognizance of the tragedies of the past, which is part of a comprehensive reconciliation and

justice. The public acknowledgment of atrocities is also essential on the part of the individual with

regards to having been acknowledged by the society. The act of going after the truth about the fate of

disappeared persons or information about other past abuses is called truth-seeking. It may be done by

various instruments, such as the truth commissions, civil society groups, non-governmentalorganizations, or intergovernmental organizations. Truth-seeking involves statement-taking,

investigations, research, public hearings, and the public reporting of such. Truth-seeking is also related

to combating impunity. Impunity is the failure to bring perpetrators of human rights violations to justice

and is a violation of the victims’ right to justice and redress. Corruption of authorities, the tradition of

the rule of law not being established, members of security forces being protected under the special

jurisdiction, and immunities lead to exemption from punishment. Truth-seeking makes possible to

establish the accountabilities that are not possible for the judiciary to do so due to legislative or practical

implications. It may make possible investigations that would otherwise not be possible and provide the

prosecution authorities with such, complementing the judicial action. Also, even if legal action is not

possible due to special jurisdictions, a weak judicial system, or amnesties; truth-seeking establishes an

amount of accountability against the perpetrators and amounts to a partial reconciliation for those

affected by the violations. However, it should be noted that acknowledgment of truth is no substitute

for the legal process and a proper prosecution should be done to provide for it. Also, the

acknowledgement of truth may not be enough for the part of the communities who have experienced

systematic abuses and they may not feel reconciled solely with being informed of the truth or receiving

an official acknowledgement of the facts they had already known; which is why a comprehensive

transitional justice is a very slow and difficult process that requires various commitments such as

prosecutions, 4 Principle 2 of the Updated Set of Principles for the Protection and Promotion of Human

Rights Through Action to Fight Impunity (E/CN.4/2005/102/Add.1). 6 reparations, vetting, providing

accountability, legislative, legal, and administrative reform, and other initiatives to ensure that such

atrocities will not happen again. It is very legitimate that persons who have suffered from forced

disappearance and torture or ill-treatment request guarantees of fundamental change before taking any

steps towards forgiving. However, it should also be noted that even after all these are provided for, the

victim or their family may never forgive or feel reconciled. Given the tragedies they have gone through,

such positioning should also be respected as legitimate. It should be noted that there is no possible way

to prescribe solutions that may be applied to all cases. Case-specific solutions should be created for each

situation, taking location, time, and related subjects into account. While discussing the right to truth, the

primary measure should be the choice. The subjects related to the situation, such as the victims and

their families, should indicate a desire for the implementation of the right to truth and show the way for

the related instruments that are going to take action. Another measure should be the aiming of a

comprehensive transitional justice framework, which will require different methods for solving different

cases. The specific situation may require additional steps or may make several steps obsolete, doing so,

a unique and responsive country-specific model is expected to be created. The related authorities and

truth-seeking instruments are also expected to show political will for taking action. Therefore, any

attempt at creating guidelines or recommendations towards multiple solutions should be responsive

and flexible as well as comprehensive enough not to leave probabilities out. 7 II. Case studies on the

right to truth in relation to gross violations of human rights Below are two case studies from Argentina

and Tunisia. They are chosen as complementary examples. Similar cases about gross violations of human

rights and the right to truth may be found in the past of many states. A. Argentina Between 1976 and

1983, the Argentine military dictatorship has waged a campaign, now called Dirty War (Guerra Sucia)

against the opposition. During this period, an estimated 10.000 to 30.000 people were killed, most of

which were forcefully disappeared, as they were abducted by the authorities, and their fate is stillunknown. Lieut. Gen. Jorge RafaélVidela of the three-person military junta took the presidency from

Argentine president Isabel Perón on 29 March 1976. National Congress was closed down by the junta,

and state and municipal government was given to the military. Trade unions were banned, and

censorship through the nation was imposed. The opposition was oppressed with the harsh censorship,

strict curfews, and fear of the secret police. Videla government started a purge of its political

opponents. Clandestine centers for detention, torture, and extermination were established throughout

the country, in which thousands of people were persecuted and jailed. The government faced little

opposition as it claimed to be fighting a civil war with the leftist guerrillas who have been active since

the 1960s. During the last years of the 1970s, with the increasing evidence about gross human rights

violations, a greater opposition started to emerge. Weekly vigils started to be held in Plaza de Mayo by

the Mothers of the Plaza de Mayo on each Thursd 8 couple, falsifying the child’s identity and date of

birth. Bergés was convicted by a federal appeals court in 1986 and sentenced to 6 years in prison for his

role in torture and providing medical oversight to torture. He was released a year later due to Due

Obedience Law, a blanket amnesty, and return to practicing medicine. In 2004, Jorge Bergés, together

with the former police officer Miguel Etchecolatz, the head of the police for the province of Buenos

Aires during the dictatorship, were sentenced to 7 years in prison by a federal judge in La Plata, for the

falsification of identity and date of birth of Carmen Sanz, who went by as Maria de las Mercedes

Fernandéz after the name given by the adoptive parents. It is estimated by human rights groups that

around 2000 people were disappeared in the La Plata region during the Dirty War.7 Another one of such

atrocities was the 1974 assassination of Chilean Army Commander Carlos Prats and his wife Sofia

Cuthbert by Enrique LautaroArancibiaClavel, a Chilean agent, in Buenos Aires with a car bomb. A

federal court convicted ArancibiaClavel of “homicide by use of explosives” and participating in the DINA

Exterior, a Pinochet regime secret police force functioning in Chile and Argentina, responsible of crimes

such as the kidnapping, murder, and forced disappearance of perceived political opponents. Arancibia

Clavel’s appeal to the Supreme Court of Argentina, claiming the statute of limitations had elapsed was

rejected. The Argentine Criminal Court’s declaration that the criminal association sentence for

participation in DINA was barred by statutory limitations was appealed by the Chilean government. On

September 2004, Argentine Supreme Court ruled that in ArancibiaClavel’s case the statute of limitations

was not applicable since the aforementioned crimes amounted for crimes against humanity as reflected

in the Universal Declaration of Human Rights. The court also observed that the crimes perpetrated by

ArancibiaClavel amounted for crimes against humanity with regards to the Article 7 of the Rome Statute

of the International Criminal Court and that ArancibiaClavel’s participation in DINA came within the

scope of Article 25 of the Rome Statute concerning individual responsibility for crimes against

humanity.8 Another example is the Von Wernich Case, about the murder of 19 and abduction and

torture of 33 persons during the military regime, for which Christian von Wernich (a.k.a. Father Christian

Gonzalez) was accused of. Detainees were urged to confess about political activities and the 7 Special

Section, ‘The Right to Truth in Argentina’ [2006] Human Rights 114. 8 ibid. 9 identity of comrades by von

Wernich, who was also accused of participation in the 1977 execution of seven political prisoners.

Allegedly, von Wernich went to collect bribes from the parents of the prisoners as part of a police plan

of extortion; and after the money’s retrieval, the police officers removed the detainees from the

detention center and killed them. Von Wernich’s presence in the events and during at least three of the

killings was admitted by the former police officer Julio Alberto Emmed, who has also admitted hisinvolvement.9 Constant protests targeted von Wernich after the military regime came to an end in

1983. Before being resurfaced in Chile in 1996, he remained underground for seven years. The church

hierarchy did not provide any explanations with regards to his movement. Later, von Wernich returned

to Argentina to face the charges.10 Between March 1981 and July 1982, the presidency changed 3

times, moving from one military officer to another. Facing the uncontrollable military allies, a weakening

economy, international pressure due to the Argentine invasion of the Falkland Islands, and growing civil

opposition, the government had to allow the activities of political parties and announce general

elections. During these last years of the Dirty War, the military personnel exerted the covering up of the

criminal evidence, while the military government passed legislation to prevent being brought to court.11

RaúlAlfonsín from the center-left Radical Civic Union, won the presidential elections on 1983, restoring

democracy in Argentina. The legislation passed under the junta rule with the aim of evading justice were

reversed, and Alfonsin announced plans to prosecute the members of the junta regime, including the

former presidents Videla, Viola, and Galtieri. Laws that grant amnesty to those accused of taking part in

crimes and human rights violations during the Dirty War were declared null by the Congress. Cases of

abduction, disappearance, torture, and executions under the junta rule were reported by the National

Commission on the Disappearance of Persons (CONADEP)12. In the following period, members of the

junta regime were prosecuted. The court convicted five of the nine members that were tried, including

the former presidents Videla and Viola. Galtieri was acquitted but later convicted of incompetency.13 9

CONADEP (n 6). 10 Special Section (n 7). 11 Britannica (n 5). 12 CONADEP (n 6). 13 Britannica (n 5). 10

The military pressure to the government prevailed during this process, and Alfonsin pushed the Full Stop

Partial Amnesty Law in 1986, setting a 60-day deadline for the introduction of new prosecutions,

resulting in the trials for the high members of the police forces to end.14 Not content with the partial

amnesty law, the army went into the uprising, demanding the trials to end as well as full amnesty and

full vindication of the army. Their uprising was heavily opposed by the civilian demonstrations across the

country. With the aim of quelling the rising restlessness in the army, Due Obedience Law was passed in

1987 by the Congress; granting immunity to all but the top rank military officers, resulting in the end of

prosecutions.15 Prosecution of the military officers for most human rights during the military repression

of the 1970s and 80s were impeded by these laws. Only cases of abduction of children and offenses not

covered by the partial amnesty laws were brought to the court after the passing of these laws. Though

these moves to relieve pressure from the military did not satisfy the armed forces, and they went into

another uprising with the motivation of stopping all of the pending trials and vindication for the army

about its role in the Dirty War. The uprising was stopped, and leaders were prosecuted, resulting in a

third uprising demanding the freedom of the leaders of the uprising as well as the restoration of the

dignity of the army and the junta members. The leaders of the third uprising were also prosecuted. The

military base was taken over by the guerrilla group MovimientoTodos par la Patria and some human

rights activists.16 Following the social distress, hyper-inflation, economic instability, and looting in big

cities; Carlos Menem succeeded the presidency after the resignation of Alfonsin in 1989. Presidential

pardons were issued for the officers and the military personnel who took part in the military uprisings,

the Malvinas war, guerilla groups, and those who are accused of supporting guerrilla groups. Leaders of

the recent military uprising took early retirement after an order. Then, Menem extended the pardon to

include junta members and generals. The military officers were prosecuted for crimes that did not fall

under the amnesty laws such as the abduction of children and misappropriation of the assets of thedetainees, even though they were protected from being prosecuted for other human rights violations.

Videla was one those receiving a pardon, but he was 14 Special Section (n 7). 15 ibid. 16 Britannica (n 5).

11 once again charged with disappearance or identity forgery of minors, for systematically abducting the

children and giving them to military families during the Dirty War.17 With the support of Congress,

Menem appointed four additional judges to Argentina’s Supreme Court, increasing the number of

members from five to nine and resulting in a shift of majority which is known as the automatic majority.

It is widely believed that the Court acted as a cover-up mechanism against the scandals during Menem’s

presidency. The resignation of the entire Supreme Court was requested in widespread demonstrations

after Menem’s presidency.18 The effort to abolish Full Stop Law and Due Obedience Law increased

during the presidency of Nestor Kirchner starting in 2003, receiving support from the Congress. The Con

12 on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity,

which became part of the Argentine law concerning the annulment of amnesty laws.21 In 2004, seeing

the case of a life sentence given to a case of murder that took place in 1974, Supreme Court ruled that

time limitations are not existent in cases of crimes against humanity and upheld the life sentence.22 In

2005, Supreme Court repealed the amnesty laws passed during Alfonsin government protecting the

convicted junta members, ruling the law be unconstitutional; resulting in the trial of hundreds of military

officers, convicting several of them. Former president Bignone was charged and convicted with human

rights abuses.23 At this point, Viola and Galtieri were dead and could not be further tried. Even though

the presidential pardons issued back in the Menem presidency remained intact, hindering the

prosecution of over 400 senior officials; many, including the Mothers of Plaza de Mayo and

Grandmothers of Plaza de Mayo who have been demonstrating with the aim of receiving information

regarding the disappeared family members during the junta rule, welcomed the court’s decision getting

encouraged that perpetrators may be brought to justice; however, there was also worries that the

already inefficient court system may get flooded, given the number of cases of killings and

disappearances that took place during the military regime.24 In 2008, the court revoked Videla’s house

arrest which he was serving since 1998 for the aforementioned charges and moved him back to prison.

Videla, Bignone, and others were convicted of the systematic abduction of children born to political

prisoners.25 21 ibid. 22 ibid. 23 Britannica (n 5). 24 Special Section (n 7). 25 Britannica (n 5). 13 B.

Tunisia Following the 2011 Tunisian Revolution and the ousting of the repressive Ben Ali after his 23

years in power, public outcry regarding the death and violence faced by the protesters during the civilian

unrest became a central matter of discussion about Tunisia. The protests against President ZineelAbidine

Ben Ali government started back in 2010; when Mohamed Bouazizi, a street vendor, selfimmolated

in SidiBouzid in response to the financial distress, humiliation, and harassment he was

subjected to. The act resonated with the general public as an objection to the growing economic

instability and deprivation of liberties. Thousands were gathered in the streets, many of whom were the

youth coming from poverty-stricken neighborhoods. The police response to the protests was

disproportionate; teargas, plastic and rubber bullets, beatings, and live ammunition was used against

those who took to streets, and the demonstrations were suppressed with the use of excessive force.26

Measures before opening fire were disregarded and live gunfire was directed at protestors with the aim

to kill in situations where use of lethal force was not legally justifiable; and according to the witness

testimonies, no warning was made prior to the gunfire, violating the UN Basic Principles on the Use of

Force and Firearms by Law Enforcement Officials, and the UN Code of Conduct for Law EnforcementOfficials, as well as the Tunisian legislation on the use of force and firearms.27 28 29 Showing solidarity

with the demonstrations, lawyers in Tunis organized a protest. Three days before the planned sit-in,

lawyer and human rights defender AbderraoufAyadi were abducted by the security forces. He was

taken from his home, placed in an unmarked car against his will, and beaten. The security forces took

him to a clandestine building where a person superior to them threatened Ayadi with death and the

killing of his family. Ayadi was detained for a day and brought back home. The next day, the security

officials did not allow him to participate in the planned demonstrations and threatened him with death.

Many other lawyers were assaulted while the sit- 26 Amnesty International, ‘Tunisia In Revolt: State

Violence During Anti-Government Protests’ 1. 27 Human Rights Watch, Flawed Accountability:

Shortcomings of Tunisia’s Trials for Killings during the Uprising (2015). 28 ‘Basic Principles on the Use of

Force and Firearms by Law Enforcement Officials Adopted by the Eighth United Nations Congress on the

Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990’. 29

‘General Assembly Resolution 34/169 of 17 December 1979, Code of Conduct for Law Enforcement

Officials’. 14 in was taking place across the country, resulting in a lawyers’ strike a week after with the

participation of thousands. The government imposed a media blackout in order to block the spread of

information regarding the protests and repression. National media, most of which is strictly controlled

by the government, did not cover the incidents. Independent journalists’ access to the places where

protests were taking place was barred, and those who reported about the incidents were arrested.

Websites and email accounts of internet activists were also taken down. However, the protests

prevailed, growing larger. In order to curb the protests, a crisis meeting was held with the participation

of top government officials including Ben Ali, the then Interior Minister, and the then Director General

of National Security held a meeting and made an action plan for the anti-riot police. The meeting was

allegedly the place where the use of excessive force by the police forces was decided and then trickled

down through a chain of command. In the following days, police forces used excessive force on and

killed protestors in many cities where protests were taking place, including Thala, Regueb, Kasserine,

Tunis, Hammamet, and Bizerte. According to the investigation of the Office of the United Nations High

Commissioner for Human Rights, 147 people died during the demonstrations and 72 in prison following

the incidents.30 Summary of the report by the Amnesty International is as follows: Members of the riot

police force, BOP, beat and tortured people, including minors and bystanders, participating or perceived

to be supporting the protests. Security forces did not let the people to help the wounded and did not let

medical access to reach the site of incidents by blocking the roads for the ambulances. The police also

shot tear gas canisters inside the homes in the vicinity of the demonstrations, leading to the injury and

death of unknowing residents. Yakin Karmazi, a seven-month-old child, was amongst those who were

exposed to highly toxic teargas and died. A mosque was also intentionally teargassed in order to

disperse the crowd gathered for the Friday 30 Associated Press, ‘UN Mission Says 219 Killed In Tunisia

Uprising - CBS News’ accessed 12 July 2018. 15 prayers with the motivation of preventing them from

joining the protests. Snipers placed on rooftops aimed and shot protestors. Bodies autopsied in the

hospital showed gunshots with higher entry points than the exit points, confirming the witness

statements. The ground forces of the riot police also fired gunshots directly towards individuals with the

intention to kill. Many of the protestors killed with firearms had single gunshot wounds to head or chest,

proving the perpetrators were trained individuals with the intention to kill, further confirming the

witnesses. Many of the bodies arrived at the hospital had marks of physical trauma showing the victimswere beaten before being shot dead, indicating that the use of firearms was also used as a means of

extrajudicial and summary executions rather than as a means of dispersing the crowd in order to

prevent harm to life. Funerals of victims also became places for protests due to the political nature of

the killings. In one of such funerals, the participants were shot from a rooftop; according to the

eyewitness statements, IssaGiri was killed trying to help another victim in the shooting, and the bullet

was fired from a rooftop near the police station. In another incident, MajdiMostri, a passer-by, was shot

from his chest and died on his way back home. Eyewitness statement was that he had his hands raised

to show he was not armed when he was executed. During the demonstrations in Tunis, MarwaAmina

was hit by a stray bullet while at home and died instantaneously. The bullet flew through her window

and hit her in the right eye. In a few hours of this incident, a black car was reported to have driven

through the crowd. An unidentified man got out of the car and fired several shots, hitting ElyasKrir from

the back of his head. The car was later seen in front of the security services office of Khadra

neighborhood. Escalating the suspicion of security forces’ involvement. In the incidents in Hammamet,

ZoheirSouissi was among those who were shot. He was brought to a private clinic but was denied

medical treatment. He died on the way to another hospital. During the protests taking place in Bizerte,

at least three people were killed. According to the brother of IskandarRahali, one of the deceased, the

protestors reached a police station, and under the impression that it was abandoned, they decided to

break in. As they opened the door, lights came on, and the protestors were shot at, revealing that the

police were waiting for their arrival and had planned the incident.31 For the duration of the protests,

the security forces engaged in various forms of gross human rights violations, torture, and ill-treatment

towards people, including minors. According to the 31 Amnesty International (n 26). 16 same report by

Amnesty International; systematic torture and ill-treatment, arbitrary arrests, home arrests without the

presence of a warrant, abductions, threatening with abduction and torture, and torture and illtreatment

under detention with the motivation of extrajudicial punishment and extraction of

information were common practices. Some detainees were driven out of the city and dumped on the

side of the roads. Several detainees were detained in unlawful detention centers with improper facilities

and left in stress positions for long duration of times and some experienced permanent bodily harm due

to this practice. Intentional denial of necessary medicine was also present in the detentions. Autopsy

reports also showed bruises and cigarette burns in the bodies of some of those deceased under

detention. There were also beatings to the detainees’ head and face, with the intention to leave

permanent injury. The property of some detainees was also confiscated. Another violation of the rights

of the detainees was that no one of family or friends of some of the detainees were informed about

their detention, they also did not have access to a lawyer.32 Throughout these processes, many

international principles regarding detention and arrest were clearly violated. Use of firearms was

intentionally excessive in a try to repress the uprising spiraling out of control. The police forces were not

given additional means to disperse the crowds with less aggressive methods and instead were handed

military arms. Gunshot wounds in vital areas such as head and chest were present in 89% of the victims

according to the case files of the judicial proceedings.33 With the aim of quelling the uprising, Zine El

Abidine Ben Ali gave a public speech on 10 January 2011. He acknowledged the casualties resulting from

the use of force by the police and made promises to ameliorate the socio-economic conditions.

However, this was not enough to curb the public anger about the government policies and the handling

of the protests. He described the protestors as “terrorists” who were being manipulated by outsideforces hostile to Tunisian interests, which led to a heavy reaction from the protestors resulting in

clashes.34 Two days later, he replaced the Minister of Interior and gave another public address,

acknowledging and showing regret over deaths, and promising for independent investigations into the

atrocities. This move too 32 ibid. 33 ibid. 34 Amnesty International, ‘Arbitrary Arrests Warning after

Tunisian President Brands Protests “Acts of Terrorism”’ accessed 14 July 2018. 17 was not enough for

Tunisians who wanted fundamental renewal; the protests continued. On 14 January 2011, Ben Ali left

the country and fled to Saudi Arabia as large demonstrations were made across the country. However,

the unrest did not calm down, and protests continued, as well as the police violence.35 Killings, pillaging,

and looting continued in the following days. Residents of the affected areas, human rights activists, and

lawyers interviewed by Amnesty International accused the security forces loyal to the toppled president

for the continuing violence, and especially for drive-by shootings. The army stepped in and imposed a

curfew, while a state of emergency was also issued. However, the security forces used their grant for

“shoot on sight” as a justification for extrajudicial executions against the people.36 As protests

continued, the government ministers resigned as well as Mohammed Ghannouchi on the same day he

assumed the presidency. The demonstrations and security forces’ insistence for the use of excessive

force continued. An interim government took on duty while the protests were also diminishing. As cases

involving security personnel are tried in military courts under the Tunisian law, the interim government

issued decree laws with regards to the military justice system. The new laws had the aim of giving

independence to the military justice from the executive, as the ministry of defense had broad powers

over the procedural matters under the previous law; such as the requirement of approval from the

ministry of defense prior to the commencement of criminal proceedings in the military courts, and

minister’s authority to suspend the sentences imposed by the military tribunal. These powers were

removed by the decree laws, which also aimed to increase the presence of civil judges in military courts

by introducing requirements on the presidents of the tribunal and the sections to be judges from the

civilian courts. The decree law also created a military appeals court, establishing a double degree of

jurisdiction; while also lengthening the time limit of appealing a decision to the court of cassation to 10

days, the same which applies to the civilian courts. Civilian parties could not join a case under the

previous Code of Military Justice. In order to allow access of victims to military justice, the decree-laws

also introduced a procedure that allows all those who 35 Amnesty International (n 26). 36 ibid. 18 have

personally suffered harm as a direct result of the offense, also giving the right to make claims for

reparations for the victims.37 Though at the time of these decrees several of the trials were already

started. The civilian courts had collected evidence, interrogated hundreds of witnesses, issued

indictments against some of the alleged perpetrators, but decided to transfer the cases to military

courts since the related Tunisian law gave the jurisdiction to the military courts in cases where the

accused were personnel of the security forces. Military tribunals were held in Le Kef, Tunis, and Sfax;

convicting some of the alleged perpetrators. However, the military appeals court decided to confirm the

conviction of Ben Ali only, reducing the charges and sentences of other defendants. Nearly all of the

alleged perpetrators were sentenced to 3 years in prison or less if any.38 37 Human Rights Watch (n 27).

38 ibid. 19 III. Work of the truth-seeking instruments Truth-seeking may be done by various instruments.

In most of the cases, more than one of these instruments exist and work in relationship with each other.

Even though types of truthseeking can be categorized as truth commissions, civil society groups, NGOs,

and intergovernmental organizations; they show great variety in how they are structured and function ineach state. This variesty is a very beneficial situation since different incidents and geographies require

different roadmaps. Depending on the existing legal framework, the willingness of the government, the

socio-economic condition, public opinion, and the opinion of the victims and their communities, the

paths to be taken vary. Different communities will have different obstacles and opportunities; therefore,

the solutions should always be specifically developed for the related context. However, learning and

adapting from other nations’ experience and seeking international guidance is also very helpful for

states that are just transitioning. A. Truth commissions Truth commissions are non-judicial inquiries that

aim to establish the truth about the fate of the disappeared persons or information about past abuses.

They function with time-specific mandate; their schedule for operation and the timeframe they make

inquiries about is determined upon their establishment. Truth commissions directly reach out to

thousands of people who are affected by the incidents and have statement-taking with them. Such

interviews and testimonies are held with families of the individuals killed in the unrest,

survivors/persons injured due to the incidents, witnesses, former detainees, lawyers and human rights

defenders, medical professionals that were on duty in where the incidents took place. Truth

commissions also gather the official and unofficial records from the state and non-state actors, as well

as documenting physical materials. They create databases where the information they gather are

stored, organized, and analyzed. Truth commissions also conduct case investigations where a specific

case such as violence against a person or more significant incidents such as massacres are investigated;

such cases are mostly chosen to be representative of the general context since investigating every case

is not logistically possible for a truth commission. Truth commissions should also forward the gathered

information to relevant prosecution authorities where appropriate. Thematic researches are also

conducted by 20 truth commissions in order to establish the causes or consequences of the atrocities, or

the like. Truth commissions also organize public hearings, where the survivors are given a platform to be

heard and share their stories before a public audience. Such events may be about specific persons or a

theme and are sometimes aired on television and radio. Public hearings are essential in increasing public

engagement with the issue, and the public’s acknowledgment of the past wrongdoings. They are also

beneficial to prevent or end continued denial of the truth. With their broad access to archives and

testimonies, the truth commissions may also discover new facts about the nature of the atrocities or the

lack of independence or impartiality of the courts who oversaw the trials, that are sufficiently significant

to justify an additional prosecution of someone who was already tried. Given the violations committed

by the perpetrator amounts to a gross violation of human rights, the time limitations or the invocation

of res judicata – a matter already judged, prohibition of double jeopardy – should not forestall the

prosecution. The jurisprudence of international courts and regional human rights bodies, the Rome

Statute of the International Criminal Court, and other international human rights law tradition indicate

the legitimacy of such approaches. Therefore, the related domestic courts may move on to decide to

bring the persons to justice rather than allowing impunity. Public outreach and communications is

another vital function of a truth commission. The impact of the commission on the public is determined

by its outreach efforts. Commissions make efforts to introduce and explain their work to the public and

make sure their mission and goals are understood correctly. Outreach and communications are also

important for having access to survivors and other people who may hold relevant information and get

them to participate in the truth-seeking process. Powers of truth commissions vary significantly from

one another. At a minimum, they are capable of interviewing persons who may provide usefulinformation with regards to the inquiries, receive cooperation from public authorities if the authorities

are willing to open archives or provide testimonies and make site visits when necessary. More truth

commissions are being given powers for a subpoena, a request that requires the person called on, to

appear before a court to testify under a penalty in case of failure to do so. Some truth commissions are

also given powers to search and seizure, provide witness protection and grant use immunity. Truth

commissions should also be given the power to ensure penalties in case improper 21 interference with

their proceedings occurs, including knowingly providing false information to the commission or violating

its powers. Finalizing the work of a truth commission happens with the publishing of a public report,

extensively explaining its findings and giving recommendations. Such recommendations may be towards

legislative, institutional, or legal reform, reparation programs for the survivors and the family of the

deceased, further exhumations or investigations, as well as follow-up measures to provide for the

application of its recommendations. Time constraints and deciding on the breadth of investigations are

very central challenges for a truth commission. As truth commissions work on a predetermined

timeframe, even if it is flexible, the commission should face the reality that it cannot see each case and

should make choices to leave a strong legacy. Afterward it can leave the completion of each

investigation to the state to finalize as part of the actualization of the right to truth. While investigating,

the truth commissions will also come across the decision of what to include in their investigation and

what not to; this is about the breadth of the investigation, and the fact that the abuses cannot be

investigated to provide every level of the context that led up to the atrocities and the complete details

of the atrocities, shall be faced and acknowledged to avoid false expectations. Truth commissions also

provide psychological support for the survivors and the families of the deceased, since the recalling of

the incidents may be highly traumatic for some. Also, witness protection is a critical element in the

working of a truth commission, since people who give witness statements may be threatened by the

perpetrators or those who are trying to protect them. This threatening becomes a significant concern if

those being accused are still in power positions such as government members or public authorities or

those who still have public influence. The truth commission itself may be the target of threats and

should have preparations ready to handle such situation. One of the most challenging questions a truth

commission will face is how it treats the information regarding the identity of the perpetrators.

Throughout its work, a truth commission will come across a considerable amount of precise information

about the identity and motivations of the perpetrators and must decide what to do with such

information. The commissions must have clear policies on how much information on specific individual

culpability should be published. The imperative of truth-seeking points towards naming the names and

establishing individual 22 responsibility. However, concerns for due process and the accuracy of reports

should also be taken into account. “Balance-of-probabilities” test is used by some commissions for their

basic findings while a higher standard is upheld before naming names. Allowing the accused to respond

to allegations before their names are published is also a common principle. Truth commission also

should have preparations to protect themselves before taking action. The quality of the work of a truth

commission and the likeliness of the commission to be perceived as a threat by influential sectors of the

society are related. Military, political, or private sectors and armed groups may try to weaken the

commission in many ways. Such attacks may come in a variety from criticism in the media to death

threats to the commissioners and staff. In case those being investigated hold government power, it is

most likely that the commission will face hardship in accessing state archives and finding cooperationwith the authorities. Accusations of political bias in order to weaken the impact of the commission is

also not uncommon. The commission board must have a diverse and reasonably balanced background

against such accusations. The members also must handle the subjects very carefully while they remain

honest and rigorous. Funding is also a challenge truth commissions face. Ideally, the government would

fund the work of a truth commission, but most of the cases the funding is insufficient if any; therefore,

truth commissions find funding from the international community. However, funding with the

expectation of influencing or directing the work of the commission should not be tolerated. Another

question is the access to documentation after the commission concludes its work, such as confidentiality

of the information they have gathered but did not include in the final report such as the information

regarding the identity of witnesses who have chosen to remain anonymous or whistleblowers who have

provided high-level information. The protection of this information from erasure or corruption is also

another issue, establishing a chain of custody and ensuring duplicate copies of the material to be

retained outside the country is advisable. Some of the truth commissions are: Tunisian Truth and Dignity

Commission, South African Truth and Reconciliation Commission, Argentine National Commission on the

Disappearance of Persons, Uruguayan Investigative Commission on the Situation of Disappeared People

and its Causes, Sierra Leone Truth and Reconciliation Commission, Commission of inquiry into crimes of

the SED in East Germany, and Commission on the Truth for El Salvador. 23 B. Truth trials A particularly

unique and compelling example in the uncovering of the truth is the Argentinian truth trials. According

to the EAAF’s 2005 annual report: “Begun in 1995, after years of research and advocacy by leading

human rights organizations, ‘truth trials’ continue in Argentina. As detailed in EAAF’s 2002 annual

report, truth trials are an innovation particular to the Argentinean judicial system, in which

investigations into amnesty-covered human rights violations are carried out by courts, but criminal

convictions of perpetrators are prohibited. Nevertheless, defendants can be prosecuted if they give false

testimony. Truth trials and the fundamental right to truth are strongly supported by national and

international human rights bodies working in Argentina. The Inter-American Commission on Human

Rights of the Organization of American States (OAS) believes that victims, family members and society at

large all must have access to the right to truth, based in Articles 1(1), 8, 13 and 25 of the American

Convention on Human Rights, particularly the right to judicial protection guaranteed under Article 25.

While the courts officially sanctioned the process, they are frequently criticized for their lack of

prosecutorial authority. These trials continue to serve as important judicial processes through which

truths about the past are being uncovered. In May 2003, two judges from the Federal Court in La Plata,

currently overseeing a truth trial, declared that crimes against humanity are not subject to any statute of

limitations. According to Amnesty International, ‘The judges revoked the dismissal of the case against a

former police officer accused of destroying information from the morgue of the Buenos Aires Police

Headquarters about the causes of death of people who had disappeared. The judges stated that crimes

against humanity that occurred during the military government (1976-1983) could and should be

investigated and punished.’”39 39 Special Section (n 7). 24 C. Civil society organizations The success of a

truth-seeking process is highly dependent on a strong and active civil society. According to the

International Center for Transitional Justice and Ghana Centre for Democratic Development, the truth

commissions which had the most impact were those that were working in areas with powerful civil

society will.40 In comparison with truth commissions, the civil society organizations (non-governmental

organizations, NGOs) are generally more deeply rooted, have the earlier initiative to take action, havemore direct contact with the population, and are often directly include those who were affected by

gross violations of human rights themselves. They assist truth commissions with information, contacts,

and expertise on the specific situation at hand. They also function as regulatory organs to commissions’

activities, giving feedback. They may also provide the truth commissions with training and materials,

including their data and records of testimonies. Civil society organizations are also a principal

shareholder in establishing channels for communication between the affected persons and the truthseeking

instruments, such as the truth commissions or intergovernmental organizations. They may also

become an essential mediator in meeting local community leaders or statement-taking process. NGOs

may also directly work with truth commissions under the means of subcontracts or having significant

members hired. NGOs can also work as an intermediator between the government and the truth

commission. These civil society organizations may also offer support services such as counseling,

community support, and medical services. Some examples are: The Argentine Forensic Anthropology

Team: “(EquipoArgentino de AntropologíaForense, EAAF) is a non-governmental, not-for-profit,

scientific organization that applies forensic sciences - mainly forensic anthropology and archaeology - to

the investigation of human rights violations in Argentina and worldwide. EAAF was established in 1984

to investigate the cases of at least 9,000 disappeared people in Argentina under the military government

that ruled from 1976- 1983. Today, the team works in Latin America, Africa, Asia and Europe on five

integrated 40 International Center for Transitional Justice, ‘Truth Commissions and NGOs: The Essential

Relationship’ 43. 25 programs: investigative program, training and advisory assistance, scientific

development, strengthening the field, and documentation and dissemination.”41 USC Shoah

Foundation: “University of Southern California Shoah Foundation the Institute for Visual History and

Education works to overcome prejudice, intolerance, and hatred - and the suffering they cause - through

the educational use of the Institute's Visual History Archive. The Institute currently has more than

55,000 video testimonies. The testimonies are preserved in the Visual History Archive, one of the largest

digital collections of its kind in the world. They average a little over two hours each in length and were

conducted in 64 countries and 42 languages. The vast majority of the testimonies contain a complete

personal history of life before, during, and after the interviewee’s firsthand experience with genocide.

The Visual History Archive is digitized, fully searchable via indexed keywords, and hyperlinked to the

minute. With more than 115,000 hours of testimony stored in the Archive, indexing technology is

essential for enabling users to pinpoint topics of interest. Indexing allows students, teachers, professors,

researchers and others around the world to retrieve entire testimonies or search for specific sections

within testimonies through a set of more than 65,600 keywords and phrases, 1.95 million names, and

719,000 images. The bulk of the video testimonies expound on the Holocaust, including such

experiences as Jewish Survivors, Rescuers and Aid Providers, Sinti and Roma Survivors, Liberators,

Political Prisoners, Jehovah’s Witness Survivors, War Crimes Trial Participants, Eugenic Policies Survivors,

Non-Jewish Forced Laborers and Homosexual Survivors. But the Visual History Archive has expanded to

include testimonies from the 1994 Rwandan Tutsi Genocide, the 1937 Nanjing Massacre, the Armenian

Genocide that coincided with World War I, and the Guatemalan Genocide.”42 HafızaMerkezi: “Truth

Justice Memory Center (HakikatAdaletHafızaMerkezi) is an independent human rights organization set

up by a group of lawyers, journalists and human rights activists in November 2011 in Istanbul, Turkey.

HafızaMerkezi aims to uncover the truth concerning past violations of human rights, strengthen the

collective memory of those violations, and support survivors in their pursuit of justice. HafızaMerkeziimplements a range of activities, including documentation in accordance with the universally accepted

standards, monitoring of 41 ‘Argentine Forensic Anthropology Team (EAAF)’ accessed 12 July 2018. 42

‘About Us | USC Shoah Foundation’ accessed 12 July 2018. 26 precedent cases, as well as dissemination

of marginalized truths and narratives on these violations to a large section of society, with a view to

supporting the recognition and rehabilitation of victims of such atrocities. HafızaMerkezi uses a unique

approach, as it gathers and accumulates knowledge and methodology from organizations dealing with

similar issues in other post-conflict and post-authoritarian regions, develops them further through its

everyday work and adapts the know-how into the Turkish context. The values of HafızaMerkezi respond

clearly to the types of human rights violations that have been committed in Turkey, especially in the last

30 years. HafızaMerkezi is an organization basing the ideas of sustainable peace and prosperous society

in the future on just and sensible approach to rights of victims of human rights violations in the past.

HafızaMerkezi advocates recognition and formal acknowledgment of state violence, accountability for

human rights violations and large-scale atrocities, and guarantees that widespread violations will not

happen. It develops mechanisms and tools that contribute to building a peaceful and free society, where

human rights are its fundamental values.”43 Mothers of Plaza de Mayo: “On April 30, 1977, a group of

14 mothers who had met in the waiting rooms of police stations while trying to discover the

whereabouts of their children, organized the first of a continuing series of demonstrations in front of the

Presidential Palace on the Plaza de Mayo in Buenos Aires. Ever since each Thursday afternoon, they

demand that the fate of the victims be made known. The enormous risks they took was illustrated by

the fact that some of them, including Azucena de Villaflor, their first president, themselves disappeared.

Despite this, the group soon counted some 150 members and grew to comprise several thousand in

1982-83. The Mothers created a formidable national network and obtained the support of Amnesty

International and the United Nations Human Rights Commission. The campaign did not stop with the fall

of the junta in 1983. Disappointed that democracy did not bring information about their children nor

punishment for those responsible the Mothers transformed themselves into a political group seeking a

just and fair-minded society. Since 1985 they publish an independent monthly. They have resisted offers

of reparacióneconómica as a bribe and refused to accept any declarations of 'presumed death' as long

as the killers go free. In 1986 the movement split as twelve of the 43 ‘About HafızaMerkezi | Hafıza

Merkezi’ accessed 18 July 2018. 27 Mothers, some of them from the original group, created the Linea

Fundadora (Mothers of the Founding Line).”44 D. International organizations Intergovernmental

organizations usually have extensive expertise and recommendations to offer. They may give training

and provide specific advice such as guidance about international human rights and humanitarian law.

Some examples are: International Center for Transitional Justice (ICTJ): “works for justice in countries

that have endured massive human rights abuses under repression and in conflict. They work with

victims, civil society groups, national, and international organizations to ensure redress for victims and

to help prevent atrocities from happening again. Their focus is on trying to put the society back together

again on foundations of justice and the rule of law, which requires staying in the struggle for the long

haul and being an active part of the solution.”45 Amnesty International: “investigates and exposes the

facts, whenever and wherever abuses happen. They lobby governments, and other powerful groups

such as companies, making sure they keep their promises and respect international law. They mobilize

millions of supporters around the world to campaign for change and to stand in defense of activists on

the frontline. They support people to claim their rights through education and training.”46 HumanRights Watch: “is a nonprofit, nongovernmental human rights organization made up of roughly 400 staff

members around the globe. Its staff consists of human rights professionals including country experts,

lawyers, journalists, and academics of diverse backgrounds and nationalities. Established in 1978,

Human Rights Watch is known for its accurate fact-finding, impartial reporting, effective use of media,

and targeted advocacy, often in partnership with local human rights groups. Each year, Human Rights

Watch publishes more than 100 reports and briefings on human rights conditions in some 90 countries,

generating extensive coverage in local 44 ‘Madres de Plaza de Mayo | IISH’ accessed 12 July 2018. 45

‘About the International Center for Transitional Justice’ accessed 12 July 2018. 46 ‘Who We Are |

Amnesty International’ accessed 12 July 2018. 28 and international media. With the leverage this brings,

Human Rights Watch meets with governments, the United Nations, regional groups like the African

Union and the European Union, financial institutions, and corporations to press for changes in policy and

practice that promote human rights and justice around the world.”47 Inter-American Commission on

Human Rights (IACHR): “is a principal and autonomous organ of the Organization of American States

(OAS) whose mission is to promote and protect human rights in the American hemisphere. It is

composed of seven independent members who serve in a personal capacity. Created by the OAS in

1959, the Commission has its headquarters in Washington, D.C. Together with the Inter-American Court

of Human Rights, installed in 1979; the Commission is one of the institutions within the inter-American

system for the protection of human rights. The work of the IACHR rests on: the individual petition

system, monitoring of the human rights situation in the Member States, and the attention devoted to

priority thematic areas. Operating within this framework, the Commission considers that inasmuch as

the rights of all persons subject to the jurisdiction of the Member States are to be protected, special

attention must be devoted to those populations, communities, and groups that have historically been

the targets of discrimination. However, the Commission’s work is also informed by other principles,

among them the following: the pro homine principle, whereby a law must be interpreted in the manner

most advantageous to the human being; the necessity of access to justice, and the inclusion of the

gender perspective in all Commission activities.”48 Even though their work is not directly truth-seeking,

the UN Special Rapporteur on extrajudicial, summary or arbitrary executions; the UN Special Rapporteur

on torture and other cruel, inhuman and degrading treatment or punishment; the Special Rapporteur on

the independence of judges and lawyers; the Special Rapporteur on the promotion and protection of the

right to freedom of opinion and expression; the Special Rapporteur on the situation of human rights

defenders; the Working Group on Arbitrary Detention; and the Office of the High Commissioner for

Human Rights (OHCHR) all provide remarkable fieldwork for the reporting abuses and offer valuable

assistance. 47 ‘About | Human Rights Watch’ accessed 12 July 2018. 48 OAS, ‘OAS - Organization of

American States: Democracy for Peace, Security, and Development’ accessed 12 July 2018. 29 Though

UN bodies or other international organizations may bring great capacity and experience, their work

should be limited to assisting the work of the local organizations. The planning activities such as drafting

the terms of reference, planning a selection process, budgeting, and decisions regarding organizational

structures should all be done by local actors such as the commission itself, the NGOs, or government

officials. However, international consulting may be highly beneficial throughout these processes,

especially the decisions on the mandate and selection of commissioners where the governments may

lean towards rushing the process. International organizations may provide legal analysis and advice to

assist the local bodies about challenging operational or policy decisions. Also, the internationalorganizations may provide comparative information with regards to the operations of other truth

commissions, and may introduce the members and staff of truth commissions or other related bodies

with each other to facilitate cooperation and exchange of ideas. Funding may be another field the help

of an international partner may be beneficial. Even though the local actors should be responsible for

finding the necessary funds and control their use, international partners may be helpful in establishing

right contacts for funding or may become the official recipient of donations for confidence building.

International bodies may also be of use in protecting the archives of the commission or NGOs, especially

once they cease to function. International advocacy and monitoring organizations play an essential role

in providing the truth commissions or other local bodies with critique about their policies or actions that

do not match international standards or may lead to legal challenges later on such as during the

prosecution of the alleged perpetrators. Their work may also be beneficial in assessing the

accomplishments of the truth commissions or other local actors. 30 IV. Recommendations and

obligations A. Fulfillment of state responsibilities on transitional justice and the right to truth The initial

step each state should take towards the implementation and protection of the right to truth is facing the

tragedies of the past and acknowledging their responsibility in such incidents. States should also

recognize the work of truth-seeking instruments and cooperate with them to the best of their capacity

while facilitating the establishment of truth-seeking commissions in case there is a lack thereof. The

states also have an obligation to enter the process of reconciliation, which includes ensuring the

revelation of the complete truth and just punishment for the perpetrators. Suspected perpetrators

should be identified, and individual criminal responsibility should be indicated. This requires the

publicizing of the information in official archives regarding the violations that amount to the emergence

of the right to truth and conducting or cooperating with necessary research and investigations where

such information is not readily available to the state. Legislation for transitional justice law should be

prepared where the situation requires the state to do so in order to establish true accountability for the

crimes. 1. On the implementation of the right to truth Diverse mechanisms on institutional and

procedural levels have been developed through international and national experiences with the aim of

the implementation of the right to truth. Report of the Office of the United Nations High Commissioner

for Human Rights on the Right to Truth provides fundamental insight on the implementation and

protection of the right to truth.49 International criminal tribunals, such as the International Criminal

Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International

Criminal Court constitute one way to establish the truth.50 A method in the upholding of the right to

truth is the national criminal judicial proceedings and trials. Truth is tested according to high evidential

and procedural standards, and the facts are laid down in a court record during the proceedings of a

tribunal dealing out justice. In promoting the right to the truth, states should guarantee broad legal

standing in the judicial process to any 49 Office of the United Nations High Commissioner for Human

Rights (n 1). 50 Final report of the Commission of Experts established pursuant to Security Council

resolution 780 (1992), S/1994/674, annex, para. 320. 31 wronged party and to any person or NGOs

having a legitimate interest therein.51 Participation and intervention of victims and their families are

allowed in national criminal procedures, which is an important aspect of the truth-seeking process since,

as direct subjects of the matter, they may want to introduce additional evidence, ask for the crosschecking

of the testimonies of witnesses, request further investigations, and make submissions to the

investigative judges. The intervention of third persons and NGOs are also allowed in some states. Otherjudicial procedures limited to investigation and documentation such as the so-called “truth trials” in

Argentina may provide a meaningful way to implement the right to the truth without necessarily

entailing prosecution and punishment.52 Judicial procedures - such as habeas corpus and amparo - can

help to ensure the exercise of the right to truth,53 particularly in cases of forced disappearances and

unlawful detention, for instance in Peru, habeas corpus is utilized to establish the fate and whereabouts

of the disappeared persons.54 Upholding of the right to truth is also a part of the state’s obligation to

fight and eradicate impunity. 2. On the government approach Human rights activist and truth-seeking

instruments should not be harassed, intimidated, or be subject to other forms of repression, neither

should their work be prevented. Their capacity and powers should be widened to enable the practice of

their duties, and their protection should be provided for. It is highly advised they are given powers of

subpoena and witness protection as well. Those who give witness statements should be protected from

reprisals and intimidations. The fight against terrorism should not be used as a pretext to oppress and

silence opposition and legitimate dissent and criminalize the exercise of human rights. Institutionalized

racism and discrimination should be addressed for just treatment of related individuals. The power to

issue a state of emergency should not be used for purposes other than those indicated by the legislation

governing their issuing. Such legislation should be structured in a way that prevents the arbitrary 51

Principle 19 of the Updated Set of Principles for the Protection and Promotion of Human Rights Through

Action to Fight Impunity (E/CN.4/2005/102/Add.1). 52 ‘Agreement of 1 September 2003 of the National

Chamber for Federal Criminal and Correctional Matters, Case Suárez Mason, Rol 450 and Case Escuela

Mecánica de La Armada, Rol. 761.’ 53 Constitutional Court of Colombia, judgment of 20 January 2003,

case T-249/03. 54 Office of the United Nations High Commissioner for Human Rights (n 1). 32 use of

state of emergency to repress opposition or create a context for impunity and human rights violations.

Political apologies, the official acknowledgment of an atrocity by the government officials or other

public figures who hold office, should be given. Usually, such acknowledgment is accompanied by an

apology and promises of reconciliation due to the responsibility of the person or the office they

represent. Political apologies may be voluntary or the result of ongoing pressure from the civil society or

other elements. Columbia University Institute for the Study of Human Rights offers an expansive online

archive on political apologies.55 Also, the online project, Casual Data, offers a compilation of political

apologies from recent history.56 3. On the Judiciary The Judiciary should be completely independent of

the Executive and have necessary means and resources to conduct effective investigations and timely

decisions. Appropriate conceptions of criminal responsibility should be set during trials of the alleged

perpetrators. These are of utmost importance to prevent collusion or the perception of collusion with

the government or the former government towards leniency to the defendants. For instance, in the

Tunisian example during the trials after the 2011 uprising, according to the report of Human Rights

Watch: “Military judges remain formally linked to the Defense Ministry through the High Council of

Military Judges. This body, headed by the defense minister, oversees the appointment, advancement,

discipline, and dismissal of military judges. In addition, the Tunisian president appoints civilian judges to

serve in military courts by decree, pursuant to the recommendation of the ministers of justice and

defense. The general military prosecutor is appointed by the minister of defense and works under his

supervision. All prosecutors and investigative judges who serve in the military courts are members of

the military. Thus, military courts cannot be considered as structurally independent from the executive

branch. This lack of independence of military courts understandably heightened suspicions among victimand their families that the courts remained susceptible to political pressure, leading to lenient sentences

for 55 ‘Political Apologies Archive | Institute for the Study of Human Rights’ accessed 12 July 2018. 56

‘Chronology of Political Apologies’ accessed 12 July 2018. 33 those convicted in relation to the uprising

killings and the acquittal of other accused.”57 International standards also require the investigations of

violations perpetrated by members of armed forces or security forces not be carried out by members of

the same forces subject to the same line of command.58 The legislation on the appointment of judges

and composition of courts should be prepared to take these principles and international standards into

account. The security of tenure of judges and safeguards regarding their protection from pressure,

intervention, or improper influence should be ensured. The right of all those affected by human rights

violations to have fair proceedings by a competent, independent, and impartial tribunal should be

provided for, and a system that enables appeals to the court’s decision should also be in place during

such prosecutions. The investigations should be initiated and concluded without delay, carrying out the

necessary on-site investigations by a forensic expert group, statement-taking from witnesses, and other

relevant proceedings. This may be of utmost importance in order not to lose forensic evidence. The

public should also be provided with the findings. All allegations of excessive use of force, unlawful

killings, and torture or ill-treatment should be thoroughly investigated, and the approach of the relevant

public officials should not be dismissive. Principles laid out in the UN Principles on the Effective

Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions should be employed

during investigations about human rights violations, including the killings; and the protection of the

related evidence from destroying or tampering should be ensured. Reports of the investigations should

be publicized. Also, victims’ and their families’ access to the court proceedings should be ensured. They

should be able to introduce additional evidence, ask for the cross-checking of the testimonies of

witnesses, request further investigations, and make submissions to the investigative judges. The fair trial

of the accused should also be guaranteed. Defendants should be given proper courtroom management

with opportunities to submit motions, argue, and rebut, and should be able to exercise their right to

engage with lawyers of their own choosing. Defendants should also be presented with the case files and

the documents that are contained such as the indictment, the testimonies of the victims and witnesses,

and all other evidence introduced during the court 57 Human Rights Watch (n 27). 58 ibid. 34

proceedings, doing so, measures for witness protection should be carefully respected, not putting those

who have provided the court with statements under the danger of reprisal. If the defendant is to be

tried in absentia, the procedural safeguards for trials in absentia should be met. 4. On the legislation on

the conduct of law enforcement officials The legislation on the conduct of law enforcement officials

should be in accordance with UN Basic Principles on the Use of Force and Firearms by Law Enforcement

Officials, and the UN Code of Conduct for Law Enforcement Officials. The abuse of power should be

prevented, and the safety of oppositional groups especially during demonstrations or under detention

should be assured. An independent, impartial, and effective regulatory and oversight body should be

present to receive complaints and make regulations about the conduct of law enforcement officials,

including complaints of torture or ill-treatment. The states also have the responsibility to ensure that no

member of the security apparatus is exempt from the rule of law, and all perpetrators are brought to

justice. The clear structure of security apparatus branches and their chain of command should be readily

public at any given time in order not to retard the establishment of accountability in cases of abuse of

power or other related violations. There should also be vetting programmes for the removal of abusivemembers of law enforcement, judiciary, or civil services. Rights of detainees should be in accordance

with the Body of Principles for the Protection of All Persons Under Any Form of Detention or

Imprisonment, and other measures should also be taken to prevent forced disappearances. All places of

detention should be open for regular, unrestricted, and unannounced inspections by national or

international independent expert bodies. The detainees must have access to their families and lawyers

of their own choosing without delay, and their access to the outside and to independent medical care

should be regular. 5. On reconciliation Those affected by gross human rights violations should be given

justice, truth, and reparations in accordance with the UN 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. According to UN Human Rights Committee General

Comment No.31, such reparations should satisfy restitution, rehabilitation, compensation, satisfaction,

and guarantees of non-repetition. 35 It should be given great care that doing so gives access to all of

those affected and be nondiscriminatory on the basis of race, color, religion, ethnicity, birth, sexual

orientation, gender identity, political or other opinion, or financial status. The truth commissions should

formulate recommendations for such compensations. All of these measures are expected to work as

trust-building towards the public and help mend their lost trust about the state and its authorities. To

achieve this end, the governments should engage in deep reforms and work towards the guaranteeing

of human rights, as well as help and promote the work of human rights defenders. 36 B. Prevention of

future violations and the protection of the right to truth 1. Recognition of the right to truth as an

autonomous and inalienable right not subject to limitations Right to truth is an autonomous and

inalienable right not subject to limitations, as declared in the Report of the Office of the United Nations

High Commissioner for Human Rights on the Right to Truth and in several international treaties and

instruments as well as by national, regional and international jurisprudence, as confirmed by the

resolutions of intergovernmental bodies at the universal and regional levels,59 which makes it a norm of

customary international law. Several of human rights are subject to limitations in accordance with their

provisions for limitations. Right to truth is not one of such rights, and cannot be subject to limitations no

matter the circumstances are, since, even though the right to truth is a right on its own, its violation also

constitutes torture due to the amounts of psychological pain experienced by the survivors or family

members of the deceased from not having access to truth being sufficiently comparable to that of other

forms of torture. Also, failure to conduct effective investigations for the clarification of the whereabouts

and the fate of missing persons who disappeared in life-threatening circumstances constitutes a

continuing violation of the state’s obligation to protect the right to life. Taking into account its close

relation with the right not to be subjected to torture and ill-treatment and other non-derogable rights,

the right to truth should as well be considered a non-derogable right. The right to the truth is closely

linked to the State’s duty to protect and guarantee human rights and to the State’s obligation to conduct

effective investigations into gross human rights violations and serious violations of humanitarian law

and to guarantee effective remedies and reparation. The right to the truth is also closely linked to the

rule of law and the principles of transparency, accountability and good governance in a democratic

society.60 Right to truth is highly related to forced disappearances. The truth about the whereabouts of

the victim is required to be revealed in order to have the crime of forced disappearance come to an end,

as forced disappearance is a singular and non-fragmented body of act that starts with the planning of

the abduction of the victim and only becomes completed after the fate of the victim is 59 Office of theUnited Nations High Commissioner for Human Rights (n 1). 60 ibid. 37 made public, while continues to

take place as long as it does not get completed. Therefore, forced disappearance is not a collection of

different criminal acts being committed one after the other, but instead defines a singular act that has

more severe consequences for those affected. Such criteria become highly decisive in processes where

the legislation is changed, or new evidence is found, and arguments about retroactivity, time limitations,

or double jeopardy are raised. 2. Structural reforms Legislative, administrative, and legal reforms that

are aimed at just handling of the past human rights violations and preventing the recurrence of such

violations is a requirement in order to be able to complete the reconciliation of the past victims, make

peace with and earn the trust of the generations who witnessed such atrocities, and ensure the next

generations that the mistakes of the past will not take place again. 3. Historical reconciliation Gross

human rights violations and grave violations of international human rights law constitute a significant

element in a community’s history; therefore, no matter how much time has passed over such atrocities,

sufficient effort shall be given to establishing the truth of the past. This, together with comprehensive

and objective cognizance of the tragedies of the past, are of utmost importance in the construction of

one’s and a community’s identity, so as that they may find relation and understanding. Historical

reconciliation is also necessary to make a credible record of history. Commissions on historical

reconciliation were previously established between Germany and France, Germany and the United

Kingdom, France and Italy, and Poland and Ukraine; for reconciliation about their shared history and

revise the history textbooks in accordance with the truth and facts. 4. Teaching about the facts and the

truth of history Educating a generation with a robust human rights understanding requires the inclusion

of the truth and facts about their past in the curriculum of the education system, which requires the

preparation of archival and educational material. For instance, Shoah Foundation provides willing

educational institutions and educators who are taking individual initiative with various tools for the

teaching about the Holocaust and 38 other human rights atrocities such as the Rwandan Tutsi Genocide,

the 1937 Nanjing Massacre, the Armenian Genocide, and the Guatemalan Genocide. They provide visual

archives, course material that can be integrated into the curriculums, time-specific online events,

interactive mobile applications for the mapping of specific location of testimonies, programs and

resources, online exhibitions, online lectures for professional development, and networking and

experience sharing possibilities for teachers. Shoah Foundation also does the monitoring of these

processes and provides evaluations.61 Another example on the teaching of the facts and truth of history

is Karakutu, which, as a voluntary and participatory organization; conducts memorialization projects for

young people, trainings and meetings in the area of dealing with past, and intercommunity historical

dialogue projects.62 They hold memory walks, which are semi-guided tours on specific locations where

subjective histories of discrimination and oppression took place. They also conduct projects with

educators, youth workers, and civil society representatives in order to develop new educational

methods. 5. Memorialization Establishing memorial days and events for the cognizance and

memorialization of the tragedies of the past is a meaningful step for both those affected and their next

of kin, and for the society at large. Also allocating urban spaces for memorials and museums that would

have programs relating to the past tragedies is a step towards ensuring the truth of the events gets

correctly disseminated in public and passed on to the next generations. Aiding the founding of

associations and foundations that will work for the establishment and common acknowledgement of the

truth, such as gathering testimonies, organizing public events, guiding researchers, etc. is also of utmostimportance to make sure the knowledge of the past tragedies lives on in the intellectual fields and can

be accessed by the general public. An example to this is the Museum of Memory in ESMA, former Navy

Mechanics School, one of the most notorious detention centers where thousands of persons were

arbitrarily detained, tortured, and killed during Argentina’s Dirty 61 ‘USC Shoah Foundation’ accessed 12

July 2018. 62 ‘About - Human Rights, Remembrance, Memory, Youth in Turkey - Karakutu’ accessed 12

July 2018. 39 War. In 2004, it was repurposed as a museum of memory for the commemoration of those

who were subject to gross human rights violations by the state officials. 6. Gender-sensitive approach

The testimonies given by women are nearly always either about the experience of their spouses or that

of their children, pointing towards an erasure of their own experience and suffering for the duration of

the atrocities. A gender-sensitive approach must be taken by the truth-seeking instruments in order to

prevent women’s experience from being erased. Such an approach may be achieved either by

collaborating with organizations that are working about gender politics or receiving training from them.

A gender diverse board for the truth-seeking instruments would also be highly beneficial. Also, a more

gender-diverse approach recognizing the non-binary structure of sex and gender, and taking into

account the social construction of such should be employed in truthseeking. Such an approach will be

profoundly enabling for a great many to participate in the processes, especially those in situations such

as Chechnya, Iran, Russia, and Turkey. For several gender groups, the motivation of the crimes

committed against them such as forced disappearance and gynecide are not separable from their

gender identity; therefore, must be taken into account if the circumstances and motivations leading up

to the atrocities are to be truly understood and nonbinary persons’ right to truth is to be implemented.

Additionally, the notion of “family” being constructed with cis-heteronormative assumptions prevents

non-conventional families from having access to truth-seeking processes. Recognizing such families as

legitimate, and revising the structure of truth-seeking and the legislative and administrative processes

with regards to the right to truth and gross human rights violations is necessary. Such revision would

enable non-conventional families to access the truthseeking process and prosecutions rightfully as

family members. Rights regarding marriage, child custody, guardianship, and inheritance all require a

gender-sensitive approach. 7. Smart amnesty During the transition process, no amnesties should be

issued with a motivation to prevent accountability or the revelation of truth. Amnesties or similar

measures and restrictions to the right to seek information should not be treated as a method to exempt

from justice those in positions of 40 power, nor to deny the right to truth. It is not uncommon that the

repressive government issues blanket amnesty laws and immunities to itself before handing the

authority, nor is it uncommon that an interim government issue a blanket amnesty to the former

government officials in an attempt to prevent reprisal or ongoing unrest. Even though these seem to be

efforts for non-conflict, the careless or corrupt use of amnesties lead to impunity and violations to the

right to truth, as well as an obstruction to the peace process due to a lack of reconciliation; therefore,

fail to serve restorative justice. The effort for the disarmament, demobilization and reintegration

process of illegal armed groups should also not hinder the realization of the right to truth. The notion of

smart amnesty has been developed to facilitate a peaceful transition and reconciliation with effective

amnesties while satisfying the requirements for accountability, and the victims’ demands of truth.

General conditions for a legitimate amnesty requires for the amnesties to be created with the

cooperation of the public and governmental bodies, the exclusion of those responsible for gross

violations of human rights from applying, have provisions of accountability for the recipient, give victimsthe opportunities to challenge the individual’s claim to amnesty and provide the victims with concrete

remedies, be targeted at transition to democracy or be a part of a reconciliation process.63 63 Natalia

Szablewska and Clara Bradley (eds), ‘Current Issues in Transitional Justice’, Current Issues in Transitional

Justice: Towards a More Holistic Approach (Springer 2015) . 41 V. Conclusion The right of people to

know the truth of their fate and that of their community and their history is a fundamental part in the

construction of their identity. Apart from the fact that the society needs to acknowledge the tragedies of

the past to be able to prevent their recurrence, the act of knowing itself is as much meaningful on its

own. With knowing what has happened and the circumstances such atrocities ripened in, people may

have cognizance and understanding about the truth of their lives and make meaning with it. When

discussing the right to truth, one must start with the recognition of the fact that nothing they may do

would ever right the wrongs of the past. Those who have deceased are long gone, and the lives of the

people of their communities will never be as complete. One must also face the fact that most of the

time the fight they are discussing is not their fight at all. Positioning oneself in ivory towers pitying and

overlooking the people who have actually suffered the pains subject to the discussions, and finding the

right in themselves to act in place of another one with the false belief that they are somehow better to

understand and solve the problems, leads one nowhere other than the colonial though of white man’s

burden. However, this should not paralyze and hold one from fighting for what they believe to be right;

reaching out to people, entering their space of sorrow and deprivation, and listening to them, siding

with them in their struggle for the truth of the fate of their communities. The struggle for truth and the

fight against impunity is nowhere near being completed. Corruption is abundant, bureaucracy is slow,

indifference is entangling, and the truth itself is going to be crushing. In this struggle, one must carefully

position themselves. Then the question becomes, not whether we make reconciliation or not, but how

we make it.