The respect and implementation of the right to truth by armed non-state actors

About the author(s):

Romina Edith Pezzot is a lawyer and a lecturer in public international law, international humanitarian law and international criminal law. She holds a Master degree in international law from the Graduate Institute and she is currently a PhD researcher in international law and a teaching assistant at the same institution.

It is well known that the truth is an essential value in transitional justice processes (TJP), and it is one of its areas of action together with justice, reparation, guarantees of non-repetition and memorialization processes (UN Report 2020). Since the right to truth has been recognized, it has evolved and nowadays it is widely recognized to be applicable to gross violations of human rights and serious violations of IHL (OEA General Assembly). Despite this legal evolution, States continue formally being the ones responsible for guaranteeing it. However, this traditional perspective has been challenged in recent years by the proliferation of NIACs (RULAC) and the violations to IHRL and IHL by ANSAs (ICRC).

In his 2022 report on the role and responsibilities of non-state actors in TJP, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence concluded that ANSAs have a ‘legal, political and moral duty to engage with truth-seeking processes concerning their involvement in past violations’, based on the general application of IHRL, IHL and ICL’ standards to the action of ANSAs. Using the UN Special Rapporteur’s conclusion as a springboard, the present post seeks to share some thoughts about the question whether and how ANSAs (as collective entities) could be involved in the respect and implementation of the right to truth. I will address this question by first briefly recalling how the right to truth has been recognized. Next, I will provide a concise overview on why it was born with a state-centric approach and finally I will explain why this approach does not impede ANSAs’ participation in the implementation of the right to truth.

The recognition of the right to truth

From a legal perspective, the truth as a value is protected by IHL and IHRL through the recognition of the right to know and the right to truth, respectively. Although these two rights are sometimes used as synonyms, they are different. Indeed, the right to know has a humanitarian root and is related to the necessity to end the uncertainty towards the fate of those combatants and civilians reported missing as a result of an armed conflict, being relevant that parties to the conflict take all feasible measures to account for them (Rules 116 and 117 ICRC Customary Study). The right to know was the legal inspiration and source for the recognition of the right to truth in IHRL with the aim to cope with the situation of impunity—due to the inactivity of States—affecting the families of forced disappeared persons since 1970s onwards. In that moment it was considered that if IHL clearly recognized the existence of the right to know of the relatives of disappeared persons in situations of armed conflict ‘there was no legal and objective reason why this right should not be recognized for the victims of forced disappearance and their families in peacetime’ (Comisión Colombiana de Juristas). In other words, it was considered paradoxical that all disappeared persons did not benefit from the same protection (p. 21-22).

Consequently, the taboo and impunity existing around the fate of forced disappeared persons in Southern Europe and Latin America during situations of internal mass violence and authoritarian governments during 1970s and 1980s (Naftali) was broken by the action of civil society and jurisdictional and non-jurisdictional bodies of the universal and regional systems of protection of human rights (Scovazzi & Citroni and the IACHR). Those bodies gradually issued non-binding resolutions and reports, and judgments that recognized the existence of the right to truth and delimited its scope (Mendez & Bariffi). Hence, the fight against impunity was and continues to be the leitmotiv of the right to truth, a right that symbolizes the restoration of victims’ dignity.

The state-centric approach to the right to truth

This right to truth was born from the interpretation of existing human rights treaty obligations, reinforcing thus basic States’ obligations and the right of the families to have access to an effective remedy to know the fate of their beloved ones (Groome and Sisson). The principles against impunity formulated by Louis Joinet (1997) and later revised by Diane Orentlicher (2005) and the OHCHR’ 2006 study on the right to truth together constitute particularly significant developments. These documents systematize and summarize the existing practice against impunity, highlighting the obligations that contribute to guarantee the right to truth. It connects these obligations with the duty of every State to have an effective, impartial and independent administration of justice that is able to adopt effective measures against impunity (Roth-Arriaza). In summary, those obligations are: i) to investigate and prosecute persons suspected of criminal responsibility; ii) to guarantee victims effective remedies and compensation for damages suffered; iii) to guarantee the inalienable right to know the truth; and iv) to take all necessary measures to avoid the repetition of the commission of serious crimes under international law. These documents also point out the key role of national and international criminal tribunals, investigation and truth commissions, human rights institutions and bodies, and other administrative bodies and procedures in guaranteeing the right to truth.

Those obligations as well as the procedures that can be established to guarantee the right to truth have been historically impregnated by a state-centric approach. This is understandable when considering: i) the historical context that marked the recognition of this right; ii) States’ failure to comply with their obligations assumed in particular in the IHRL field; and iii) the conception of the State at that time as the main legal subject obliged to respect and guarantee IHRL (including the exercise of criminal jurisdiction). Nevertheless, States’ leading role should not exclude non-state entities to implement the right to truth in particular if they have previously committed serious violations of IHRL and IHL. Since the adoption of the Joinet-Orentlicher Principles and the OHCHR’ study, there have been quite some evolutions that has taken place in the field of IHRL and IHL, especially on the topic of armed non state actors. These developments should be reflected in the right to truth debate, especially in the identification of those entities that could respect it and implement it, in particular, during a TJP.

The right to truth and ANSAs

Accepting the possibility that the right to truth could be respected and implemented by ANSAs is compatible with the current tendency to consider that core obligations of IHRL and IHL are binding not only for States but also for non-state entities such as ANSAs. In the case of IHL, this branch maintains its internal legal coherence since its material scope (the types of armed conflicts) and its personal scope of application (the obligated subjects) reflects each other as a mirror image. In the case of IHRL, scholars, like Rodley, suggest that IHRL should be understood from a broader perspective as a set of principles that mediate the relationship between the same power and its subjects (at 523). As Callamard has clearly pointed out, attributing certain human rights obligations to ANSAs does not nullify, but rather complements, the State’s responsibility to respect and guarantee (at 98).

This broad and more realistic conception of the application of IHRL and IHL, is the direction towards which both branches of law are slowly evolving. For instance, the UN Security Council in several resolutions has condemned violations of IHRL and IHL by ANSAs and has reaffirmed their duty to respect both regimes (e.g. resolutions 2649/2022, 2565/2021, 2486/2019, 2448/2018, 2374/2017, 2225/2015). In addition, the Special Representative of the UN Secretary-General for Children and Armed Conflict in its annual reports assesses compliance by all parties with the obligations contained in the 1989 Convention on the Rights of the Child and its 2000 Optional Protocol (in particular, article 4). Besides, this legal trend is in line with the definition of victim included in the Basic Principles and Guidelines on the right to a remedy and reparation for victims of serious violations of IHRL and IHL. This document proposes a broad definition of victim, focusing on the person who suffered the harm, regardless of who caused it. This special focus leaves the door open for ANSAs to respect the right to truth. Moreover, ‘deeds of commitment’ have also been one of the tools used by Geneva Call to persuade ANSAs to respect the basic obligations established by IHL and IHRL regarding the protection of children, sexual violence and non-discrimination.   

In light of the above, the right to truth can be respected and implemented by ANSAs during or after an armed conflict, as it is already happening in long-standing NIACs. For instance, some ANSAs have developed their own governance system for the purpose of preserving order and justice in the territories under their effective control (Rodenhäuser). They have established their own courts to prosecute its members or enemies for war crimes or other crimes, either to maintain discipline within the group and/or reduce impunity for war crimes, among other reasons (Heffes, Sivakumaran, Provost). Therefore, when these criminal proceedings take place, and the minimum guarantees for a fair trial are respected, there is no doubt that they contribute to respecting the victims’ right to truth.

Furthermore, an interesting example to mention is the 2016 Colombian Peace Agreement, in which the FARC-EN and the Colombian State have explicitly agreed to create the Comprehensive System for Truth, Justice, Reparations and Non-Recurrence, based on the recognition that the historical clarification of the truth is relevant for satisfying victims and the Colombian society’s right to achieve a stable and long lasting peace. That compromise was honored by the FARC-EN, for example, in Case Nº 1 before the Truth Recognition Chamber, which concerned the macro criminal policy adopted by the FARC-EN’ Secretariat for implementing hostage taking—a war crime—and deprivation of liberty—a crime against humanity—. This case is interesting because in resolution Nº 19 the Chamber differentiated the individual and collective contributions to the truth by members of the group and by the FARC-EN Secretariat, on behalf of the FARC-EN. The collective contributions to the truth by the FARC-EN Secretariat in that case was essential for clarifying their internal organization, the criminal policy adopted for committing the crimes investigated, and what had happened with the victims during the armed conflict, making this real the individual and collective dimension of the right to truth.

Although some ANSAs are already respecting and implementing the right to truth, it is important to be realistic and recognize that an ANSA will not be able to comply with each of the obligations imposed on States and listed by the Joinet-Orentlicher Principles and the OHCHR’ study, for obvious reasons. However, this should not be an excuse for denying the possibility of respecting at least a set of minimum obligations that would allow them to make this right effective when they have set up their own courts or when participating in a TJP. Consequently, based on the notion of sliding scale of obligations (Sassòli) and the level of organization, an ANSA could i) avoid granting amnesties within the group to serious violations of IHL and IHRL; ii) exclude from internal codes the possibility of relying upon the concept of ‘due obedience’ as a means of excluding criminal responsibility; and iii) adopt measures to preserve information related to serious violations of IHL and IHRL and share it later in a TJP. Finally, if an ANSA has its own courts, it could: i) guarantee victims’ access to justice by prosecuting those members responsible for violating IHL and IHRL; and ii) take measures to repair the victims and prevent the violations from happening again.  

Concluding remarks

States are and will continue being primarily responsible for guaranteeing the right to truth. Nevertheless, this post has argued that if ANSAs have been part of an armed conflict and have committed crimes, they could also have an active role in respecting and implementing the right to truth. Therefore, based on their level of internal organization, ANSAs could also respect it by implementing minimum measures not only during the armed conflict but also once peace has been achieved, accompanying and collaborating with the State in a TJP.

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