Right to Truth, Truth(s) through Rights: Mass Crimes Impunity and Transitional Justice (Part III)
This three-part panel examines the blind spots of the “fight against impunity”, a universal guiding principle, which has become central in the international legal system in order to promote peacemaking and peacekeeping, security, democracy, and the rule of law in situations emerging from mass violence. This “fight” is built upon the recognition of four complementary and intrinsically linked fundamental rights: the right to truth, the right to justice, the right to reparation, and the guarantee of non-recurrence. Each of these rights, to which the victims are entitled, is associated with a state obligation: the obligation to investigate, to prosecute and sanction, to repair, and to prevent. These four pillars are indivisible from criminal justice. Nevertheless, even though the notion of the “fight against impunity” has stimulated a vast array of legal and judicial tools to deal with mass crimes, at national and international levels, one observation still remains: in spite of everything, impunity persists in most cases. In such instances, some conflict and post-conflict situations across the globe have shown how the “fight against impunity” has taken the form of a demand for the restoration of truth in the face of rampant governmental and judicial inaction. The three sessions of this panel aim to provide a much-needed interdisciplinary reflection on the ways that the right to truth is mobilized as part of transitional justice initiatives, which take a judicial or extrajudicial form or are enacted through civil society-led endeavours happening sometimes at the margins of state involvement. Presentations from law, philosophy, political science, and social anthropology provide novel insights about the ways in which state and non-state driven transitional justice paradigms engage with notions of truth in relation to but also beyond criminal inquiry and prosecution, in contexts of ongoing impunity for, and/or denial of, mass crimes.
Presentations of the Symposium
What’s in a Name? (Re)setting the Scene of Impunity for Mass Crimes
Since the “anti-impunity” turn in the late 1980s’, international, hybrid and domestic courts and mechanisms have been created, along with a dedicated legal framework, to “combat impunity” in the aftermath of mass violence. Nevertheless, even though impunity has become key to identify appropriate form(s) of justice in transition, its signification remains ambivalent under international law. This presentation explores the meaning and function that the concept of impunity acquires in these contexts. First, it addresses the dominant understanding of impunity: perpetrators’ freedom from punishment. Questioning this conception, it argues that impunity is better conceived as a continuum of situations that span throughout the criminal procedure, from the absence or the miscarriage of investigation to perpetrators’ acquittal or conviction to derisory penalties. Second, the presentation considers the other understandings that “impunity” might gain within broader transitional justice processes: the lack of acknowledgement of the facts and the victims and the failure to provide them with adequate reparations. It concludes by discussing the need for defining the essence of the concept of impunity, while also taking into consideration the ever-changing contexts of transition from mass crimes.
Rethinking the Iconography of the South African Truth and Reconciliation Commission (TRC): An analysis of the TRC’s influence in shaping truth-seeking policy and practice in Africa today
Much has been written concerning the work and impact of the South African Truth and Reconciliation Commission (TRC) within South Africa. This chapter is neither a eulogy nor an indictment of the TRC. Instead, it analyses how the TRC has influenced and shaped the conceptualization of truth-seeking norms and framed the role of truth commissions in Africa. The main thesis explored in this chapter is that the current African truth-seeking norms and policies are heavily influenced by the ‘iconography’ of the TRC. The chapter traces the development of the mandates of truth commissions in Africa and also examines truth-seeking policy guidelines propounded by both the African Union (AU) and the African Commission for Human and Peoples’ Rights. By presenting an objective critique of the transposition of the TRC model into contemporary truth-seeking law and practice, this paper examines the conceptualization and implementation of the right to truth as a means to counter denial of and impunity for serious human rights violations in Africa.
In Search of Lost Truth and Justice in Asia: Two Decades of Peoples’ Tribunals in Contexts of Impunity for Mass Crimes
The past six decades have witnessed a proliferation of peoples’ tribunals organized worldwide by civil society in order to investigate, analyze and denounce massive human rights violations which remained unpunished. This presentation seeks to evaluate the contribution of these “tribunals of opinion” to transitional justice in Asia by examining four examples: the Tokyo Women’s Tribunal (2000), the International People’s Tribunal on Crimes against Humanity in Indonesia (2015), the Permanent Peoples’ Tribunal on State crimes in Myanmar (2017) and the China Tribunal (2019). After reflecting on the strategies implemented by these alternative justice mechanisms to ground their ontological and “jurisdictional” legitimacy, we consider the roles they may assume regarding the right to truth and the right to justice. The first hypothesis is that peoples’ tribunals could participate in the implementation of the right to truth through their fact-finding function. The second is that they could contribute to the right to justice at two different levels: by providing an acknowledgment to victims who have been left out by official institutions and by paving the way for traditional legal actions. Transversal to the dual axis of this presentation is the question of the articulation of peoples’ tribunals alongside other practices of transitional justice.