Introduction

Of the national constitutions and charters of the world, fewer than five list an autonomous “right to truth” among the fundamental rights of its citizens. The term itself was not used in any official capacity until the 1970s and 80s, when organizations in Latin America wielded it as a narrative tool to demand the truth from autocratic regimes. And yet, in a 2005 study, the United Nations High Commissioner for Human Rights (OHCHR) deemed it an “inalienable and autonomous right,” non-derogable, and not subject to limitations. Though their pronouncement had yet to take on the force of international law, it made a profound statement about the right of people to know and understand the truth about gross human rights and humanitarian violations. The concept of the “right to truth” has, despite critiques, gained ever growing support among both legal and extralegal institutions, where it has been utilized to uphold human rights, promote state transparency and accountability, encourage equitable judicial remedies, and combat impunity, among other uses. Attempts have been made to divorce the “right to truth” from the metaphysical concept of truth, reducing it to little more than rote facts, but such an interpretation dramatically undermines its wide-reaching impact. The true value of such a right can be better understood through the bifocal lens of Christian scripture and higher law. The “right to truth” also has profound implications for Christian approaches to justice and, by emphasizing redemption and healing beyond (but not in exclusion of) conviction, it has an important role to play within both restorative and retributive theories of justice. 

Contextualizing the Right to Truth

The concept of a right to truth entered into customary international law through various, and often divergent, extralegal mobilizations. The term was first used in Latin America during the 70s and 80s in response to the endemic enforced disappearances taking place in dictatorial regimes. Fragile peace, state non-compliance, and political amnesties often precluded the possibility of criminal trials, leaving victims in the dark about the fates of missing relatives. In the absence of legal remedy, organizations seeking to help victims utilized the “right to truth” as a neutral, depoliticized term by which to demand as a moral imperative truth-seeking investigations into the state-sponsored violence of oppressive regimes. At this time, the “right to truth” was associated with Article 32 of the 1977 Additional Protocol I of the Geneva Conventions, which granted “the right of families to know the fate of their relatives” within the context of international armed conflicts. In the wake of the state-sponsored ethnic cleanings in the Balkan states of Southeastern Europe, the “right to truth” was further mobilized to seek state accountability for human rights violations and challenge amnesties as state prerogatives. In Velásquez-Rodríguez v. Honduras, the Inter-American Court of Human Rights (IACtHR) ruled that the state has a legal obligation “to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains,” even in cases when the perpetrator could not be prosecuted. The Inter- American Commission on Human Rights (IACommHR) similarly recognized the “right to truth” not only as the right of individual victims, but as the collective right of a society. In 2005, the OHCHR, alongside the UN General Assembly (UNGA), passed a resolution which recognized the expanding scope of the “right to truth” beyond the context of enforced disappearances, extending the right to “access to relevant information concerning violations and reparation mechanisms” to all victims of gross violations of international human rights and humanitarian law. In this manner, this so-called right “came to aggregate both supporters of restorative justice and advocates of prosecutions to become the cornerstone in the fight against impunity.”

From its use as a tool for extrajudicial organizations and activists, it was gradually established as a customary right in international law—standing, as Yasmin Naqvi puts it in her analysis, “somewhere on the threshold of a legal norm and a narrative device… [S]omewhere above a good argument and somewhere below a clear legal rule.”  Despite the institutionalization of the “right to truth” within international law, however, a clear definition of this right remains elusive. According to Patricia Naftali, this is largely due to the plurality of interests and agendas of the extralegal mobilizations which have sought to utilize this concept within the diverse contexts of human rights and humanitarian law, transitional justice, truth commissions, and, even, forensic medicine. While these uses are globally reinforcing, normalizing the “right to truth” within both legal and extralegal contexts, a lack of definitional agreement has undermined the strength of the concept itself. Discussions over the scope, content, nature, entitlement, and implementation mechanisms of such a right are legion. In 2006, the OHCHR drafted its “Study on the right to truth,” which sought to comprehensively answer such controversies, concluding that: 

The right to the truth about gross human rights violations and serious violations of humanitarian law is an inalienable and autonomous right… [It] also has a societal dimension: society has the right to know the truth about past events concerning the perpetration of heinous crimes…. The right to the truth implies knowing thefull and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them.

The study further—and significantly—noted, “Truth is fundamental to the inherent dignity of the human person.” This definition prompts a plethora of questions worth exploring, central among which is that which Pontius Pilate asked Jesus as he stood before him: “What is truth?” In a joint concurring opinion in El-Masri v the Former Yugoslav Republic of Macedon, four judges of the European Court of Human Rights (ECtHR) determined that the applicant’s “right to truth” “does not mean ‘truth’ in the philosophical or metaphysical sense of the term but the right to ascertain and establish the true facts.” Faced with such a interpretation, however, another question must inevitably emerge: if a “right to truth” is merely a “right to ascertain and establish the true facts”—absent any notion of objective truth—who is to say such facts are indeed true (if such a word retains any formal meaning outside of metaphysics), and true according to whom? The relativism of truth effectively strips the right of any inherent value of its own, making it difficult to reconcile such a concrete definition of truth with the lofty ideals of the OHCHR’s description of the “right to truth”— namely, of its being “fundamental to the inherent dignity of the human person.” Mere fact-finding, divorced from a philosophical understanding of truth as a transcendent value, cannot without difficulty be described as “fundamental to inherent dignity,” however true such facts may be. 

In order to understand the true value of a “right to truth,” it is imperative to understand truth not as a concrete set of facts, but as a redemptive quality which is capable of transcending individual human experience. Naqvi notes that within Christian doctrine truth is “seen as something that is ‘done’ by a person, and this action has both redeeming consequences… and represents an act of God.” Thus, Jesus declares on the Mount of Olives, “[K]now the truth, and the truth will set you free” (John 8:32), and prays to the Father, “Sanctify them through thy truth: thy word is truth” (John 17:17). Ephesians 6:14 similarly lists truth as part of the armour of God, by which one can wrestle “against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places” (6:12). Truth is thus not a static recitation of facts, but a life-giving quality capable of sanctification, redemption, and restoration. It is, much like justice, a tool with which one fights against darkness—or, in the words of the OHCHR, against “gross human rights violations.” Like the Christian concept of truth, the “right to truth” in international law possesses the quality of an action. It is a means of maintaining peace, safeguarding against impunity, pursuing justice, ensuring democratic transparency and accountability, seeking national reconciliation, and aiding the healing process of victims. 

The Right to Truth: Restorative or Retributive? 

There remains the temptation to associate the “right to truth” with purely restorative justice, and therefore perceive it as being in conflict with the defendant-centred retributive justice traditionally emphasized within international law. This tendency is clearly visible in Hannah Arendt’s analysis of Adolf Eichmann’s trial in Jerusalem, in which she sharply criticizes Prosecutor Gideon Hausner for creating a sensational spectacle out of the trial by seeking not only a conviction, but also “a living record of a gigantic human and national disaster.” To Arendt, such extra-judicial goals are intolerable within the context of a criminal trial: “Justice demands that the accused be prosecuted, defended, and judged, and that all the other questions of seemingly greater import… be left in abeyance… A trial resembles a play in that both begin and end with the doer, not with the victim” (emphasis added). In Arendt’s paradigm, then, neither victim nor society has any place on the stage of justice. In her epilogue, she goes on to critique all judicial objectives which extend beyond determining the guilt or innocence of the defendant, arguing that “[t]he purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes… can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.” There is, in short, no place for a victim’s “right to truth”—or, indeed, for the victim at all—within the sacred halls of retributive justice. 

Such a perspective, however, takes an overly myopic view of the mandate of international criminal law, reducing it to a defendant-centred approach that forsakes victims—or worse, profits from their testimonies to secure a conviction—to the detriment of individuals and societies. At its core, it views crime “as an offense against the state, not against the victim.”  The focus is placed not on the perpetrator’s harm to the victim but on their breach of the law. This singular emphasis on the crime itself, as opposed to the far-reaching consequences of that crime, is promoted by thinkers such as Jeremy Bentham and William Blackstone, whose utilitarian approaches to criminal law emphasize punishment and deterrence as the surest means of administering justice. The result is a criminal justice system which, as per Arendt’s suggestion, “render[s] justice, and nothing else,” with the implicit assumption that the just punishment of crime is alone necessary for the greatest happiness of a society. The question that must be asked, however, is this: If justice serves only to punish criminals but abandons victims, is it truly justice? Within the context of humanitarian and human rights law, the answer is an unequivocal “no.” As Charles Colson and Pat Nolan note, crime has far reaching consequences far beyond the actual breach of law: “Crime is seen as a rift in the shalom of a community—a breach in the right relationships among individuals, the community, and God.” Restorative justice, they argue, is a process by which those broken relationships are mended and set right. Nor is this emphasis reserved to Christian thought. The broad recognition of truth as a human right has exemplified a growing acceptance for restorative justice—justice which not only punishes but heals. A “right to truth,” therefore, is not merely a victim’s right. It is worth reemphasizing the OHCHR’s study on the right to truth, which focuses on the importance of truth as a mechanism of justice necessary to the flourishing of individuals, societies, and states. As Article 58 of the study points out, “the right to truth also has a societal dimension.” The implicit assumption here is that individuals cannot fully heal with the context of a broken society, and that society cannot fully heal as long the injustices of its collective past remain untold and unacknowledged. Justice is not an isolated endeavour. Societal reconciliation, as much as individual truth-seeking, is central to restorative justice. In this way, then, the “right to truth” is redemptive, capable of national, societal, and individual restoration.

This is not, however, to suggest that truth-based justice is antithetical to more traditional forms of retributive justice. Mark Osiel suggests that legal compromise is often necessary in the aftermath of atrocities: “At such times, the need for public reckoning with the question of how such horrific events could have happened is more important to democratization than the criminal law’s more traditional objectives.” The “right to truth,” however, far from opposing the objectives of retributive justice, is complementary to it. Truth-seeking, while often utilized in contexts where judicial recourse has broken down (e.g. following enforced disappearances of the 1970s), is also an essential component in judicial proceedings. The “right to truth” does not limit or infringe upon prosecutorial duties, but rather demands that the duty to truth be acknowledged outside of the courtroom as well. By placing an obligation on the state to disclose the truth about gross human rights violations—irrespective of legal proceedings—it creates a social climate within which both international criminal law and supplementary extrajudicial mobilizations can better be pursued. This sentiment is echoed by Gloria Park, who notes that “[t]he independent nature of the state’s obligation to provide the truth implies that the truth is an integral component to the provision of justice in its own right, rather than a lesser or supplementary component to trials and other prosecutorial measures.” Thus, she adds, the flexibility of the “right to truth” “promotes a broader definition of transitional justice beyond merely prosecutorial justice to encompass conceptions of victim rehabilitation and societal reconciliation.” Truth is owed by the state not in addition to justice, but as justice.

Conclusion

The profound impact of a “right to truth” lies in its ability to promote truth as a form of justice. By emphasizing the role of the victim, it moves beyond mere investigatory fact-finding and prosecution and towards restoring broken individuals, societies, and states. By fighting against the darkness of crime with the light of truth, the “right to truth” plays a redemptive role in crafting the narratives which augment communal healing in the wake of humanity’s most shocking atrocities. It seeks to democratize the truth about gross human rights and humanitarian violations and, in doing so, create a social climate in which justice can better be pursued and communities can thrive. The wide-reaching impact of the “right to truth” fulfills the imperative expressed in Isaiah 1:17: “Learn to do right; seek justice. Defend the oppressed. Take up the cause of the fatherless; plead the case of the widow.” Already, this right has been used to take up the cause of those who lost children, parents, and siblings; to plead the case of those who had no judicial recourse; to defend those who suffered under autocratic regimes; and to seek justice on behalf of victimized individuals and societies. As has been shown, the “right to truth” is an important judicial and extrajudicial tool for all who seek to promote not merely restorative or retributive justice, but redemptive justice. For Christians who believe in the power of truth, then, it is not merely important, but powerful. The duty only remains for Christians to wield it righteously and courageously, as unto the Lord. 

Bibliography

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