The Recognition of the Right to Truth - Essay Example

On the 12th of December the European Court of Human Rights (ECtHR) made a ruling that marked a significant milestone in the quest of the court to ensure accountability in cases related to violation of human rights. This was especially in cases concerning terrorism, which was becoming a major security and human rights concern globally. The ruling in El-Masri v The Former Yugoslav Republic of Macedonia signified the recognition of the right to truth. The particular case involved the rendition of an individual who had been held as a terrorist suspect and tortured by the Central Intelligence Agency (CIA) aided by the Macedonian authorities1. The ruling in El-Masri differed from precedential rulings on extraordinary renditions in that it clearly broke the wall of secrecy which normally follows such cases at domestic level. The ruling was intended to ensure that justice was done and the European Conventions of Human Rights (ECHR) was protected, it can be interpreted as the recognition of the right of truth. Furthermore, it has provided the court direction in dealing with similar and related issues of human rights violations and will continue to strive effectively in safeguarding human rights. Prior to this landmark ruling, truth had not been taken or recognized as a right to both victims and nations2. The court in most instances only considered and recognized access to information when dealing with such cases. However, with the widespread secrecy of most of the extraordinary extraditions associated with terrorist suspects, cases of injustices, abuse of rights and lack of accountability continued to be on the rise. The ruling therefore motivates greater accountability in future cases dealing with human rights violation. Before ECtHR recognized truth as a right, there has been clamor for the right to truth in Europe3 due to public anguish towards the high number of cases caused by severe human rights violation and the impunity that the perpetrators of such acts have continued to enjoy even after having contravened the ECHR. Today, the right to truth is one of the most fundamental issues in Europe. It is taken to be the most recent human right construction. The recognition of it is a promising shift from conventional justice model towards a victim based remedy that is intended to benefit both survivors of human rights violation and European societies as a whole. To look at the right of truth and its impact in terms of accountability, decades of nation sponsored terror in European countries should be considered. It has necessitated a new view upon human rights theory which ECtHR has not taken for granted. It is imperative to note that this new concept brings not only accountability, it also advocates for new rights that undermines the long established moral force of rights. In recognizing the right to truth, ECtHR ensured that a solid legal foundation is established so that victims and family members as well as the society can seek redress in cases of human rights violation. Accountability in cases of abuse of rights requires that individual rights apply to victims, the family members and the society in general4. This is possible when the court takes the role and duty of the state to investigate human rights violation cases. This allows the court to use means at its disposal to ensure the victim’s relatives and the society are informed about the fate of the victims suffering from a series of severe human rights violation as well as to remove the smokescreen of secrecy that had over the years surrounded such cases. The right to know the truth to facts that result in human rights violations has also necessitated the right to know the perpetrators of such acts and the various stakeholders who take part in such violations5. The right of truth is viewed as a means of ensuring accountability in future human rights cases by presenting it as a direct remedy to the violation6. In Quinteros, the right of truth was used as a remedy of the mental and physical suffering the mother of the victim had to undergo due to uncertainty on the fate of her daughter7. However, this may be complicated at times and may also hinder accountability owing to the dual nature of truth. As such it is vital for ECtHR to device mechanisms that are intended to differentiate between the privilege of access and the right of an individual to truth. Extending the right to the society is the other means through which liability can be ensured in human right abuse instances. Public or societal right to truth is a broad and vague term. In most instances of human right violation case, the state has only been willing to confer the right on close relatives of the victim, so as to ensure that the cases of death, disappearance and torture is investigated and those involved are prosecuted8. It is agreed that each and every society has the right to know the truth surrounding crimes that have occurred or taken place as well as the conditions and circumstances that surround such occurrences9. This is said to be important in helping the public or the society to avoid repeated occurrences of such horrendous acts. Justification of societal rights to truth is heavily attributed to the obligation of the state to guarantee full rights to everyone with respect to the ECHR10. In order to ensure that such rights are protected in the future, it is argued that the society must be able to learn from past abuses11. This learning process is only possible when the society is informed on the human right violation instances, the circumstances that surround it and the perpetrators of such violations. The societal right of truth is very much grounded to the right to remedy. It is also a fundamental corollary of the right to information and this therefore means that individuals are not only allowed to be free to get information and impart that information but they must also be assured that they are receiving truthful information from involved states or government agencies12. It has been widely documented that a society which is not well and truthfully informed cannot be free. Thus, the right to truth can be viewed as a facilitator of freedom of information13. The move and decision by the ECtHR in El-Masri underscored the importance of knowing what happened not only to the close family of the victims but also to the general public in order to ensure justice, transparency and accountability. Through the recognition of this new dimension, ECtHR was able to give a much needed opinion and view on the impact truth has on investigations surrounding the violation of the human rights which are protected by the Convention a in the long term answerability14. Majority of states have exploited the privilege of secrecy to hide vital information away from the public thus compromising answerability. The issue of extraordinary rendition has been reported in various countries, attracting worldwide attention15. It is due to fact that various international as well as intergovernmental entities have initiated enquiries intended to look at this issue. From most of these enquiries, it has emerged that most states have hidden the truth by heavily relying on the privileges of the state to keep secrets away from the victims and the society in general16. As a result, the states have been able to hide the information on such case of extraordinary renditions from the victims and the public - more violations continue to be witnessed17. ECtHR made a clear and direct move to show that the state secret privileges were inconsistent with the right of the victims and society to be acknowledged about every detail on the violations that took place around them. El-Masri ruling provided an excellent illustration on how ensuring victims and society are given the right of truth can promote accountability. In this case, ECtHR indicated that Macedonia prevented the applicant from being informed on what had happened to him, the accurate accounts of the events and those who were responsible18. Cases of human rights violation can be reduced by ensuring accountability since the state will be tasked with the responsibility of accurately and truthfully informing stakeholders. When such practices are promoted, states will be more respectful and careful in handling held suspects and will pay more effort to ensure the rights of them are not infringed19. This will go a long way in ensuring that the ECHR is not contravened by its member states. In cases where the information revealed is found to have contravened the convention, it will be comparatively easy to hold those responsible accountable for their actions and let justice be done and be seen. There are many obstacles which may prevent investigation of cases thus limiting effectiveness and contribution of the right to truth towards accountability in protecting rights. However, through adequate intervention of authorities during investigation of, public confidence can be maintained. El-Masri decision recalled the duty of states in investigation of the cases of human right abuse so as to ensure public scrutiny. By ensuring its presence, ECtHR was able to bring liability back on the side of state parties. The right to truth results in public scrutiny of investigations of the cases related to human rights and thus ensuring accountability of the member states both in theory and in their practices. As such, eradication of serious cases of rights violations is made possible. Recognition of right to truth in El-Masri promotes answerability that called for the reopening of various significant cases involving violation of human rights where the victims and the society had not been accorded truthful information. These calls have also gone a long way in supporting the decision of the court and underpinning the importance of truth. Moreover, they have strived to underscore the role of truth in accountability, justice and human rights protection. One of the major cases debated and called for its reopening on the basis of El-Masri ruling is Ireland v. the United Kingdom. The case involved the popularly referred ‘hooded men’. The hooded men were interned in Northern Ireland in 1971. Due to the emergence of the new dimension of human rights protection and the role of truth, there have been calls for ECtHR to reopen the case since it is viewed that the UK carried out inhuman treatment to the victims and it did not ensure their right to the truth. As such, the UK has been viewed to be responsible and should therefore be held accountable for the occurrences. The decision of ECtHR to recognize the right to truth in the protection of human rights in 2012 was a remarkable step in the history of the court. Despite truth being dual in nature, the court recognized the importance of both the society and the victims of human rights abuse being informed about the acts, the circumstances surrounding it and those involved. This is intended to provide remedy by relieving the victims from the uncertainty that surround their fates. Moreover, the right to truth ensures accountability of various state parties in that they have the responsibility of informing the victims and the society truthfully. Such actions are important as they are intended to reduce the number of human rights violations cases. When the state and related authorities make it their responsibility to inform the society and the victims truthfully on matters related to human rights abuse, they will hold themselves or will be held accountable for the reported cases. This goes a long way in ensuring the convention, which the state parties adhere and subscribe to, is protected. When this is the case each and every state party will always be striving to ensure that they protect this new dimension of human right and in the process ensuring that there is stability. However, this requires active participation and collaboration from the member states. In liaison with the discussions, the endorsement for the recognition of the right to truth opens way for increased accountability in cases of abuse in the future. It is indisputably that the right to truth is a leeway to guaranteeing accountability in cases. However, it ought to be understood that the decision of the ECtHR with regard to the case of El-Masri v. Macedonia20 left some gaps. Although it reviewed the actions of the Macedonian authorities and sanctioned them as a result of the numerous violations, it argued that its ruling did not hold the American government accountable. This is baffling considering that it was the American intelligence agents that were responsible for torturing El Masri and transferring him to Afghanistan secretly where he lived under inhuman environs. This reveals that although the ruling recognized violations related to the human rights, it also reflected on the clear limits, regarding the jurisdiction of the ECtHR. In that case, there is a need to put more sound measures in future to guarantee full accountability. Despite, the few flaws with the court, it is obvious that the ECtHR has made tremendous improvements in making sure that the unlawful practices that pertain bizarre renditions are minimised.21 The right to truth has done away with the realms of impunity and made sure that cases relating to illegal arrest, forced disappearance, and secret detention are reduced. This also means that by reaffirming the government’s duty to secure investigations relating to violation of human rights, the ECtHR made sure that in future, the societies as well as people affected are able to get closure on the iniquities that are committed by the government in their quest to fight terrorism. Consequently, this heightens the possibility of accountability of future similar cases22. The ECtHR’s decision in the case of El-Masri did not only help in opening a path for the US to ensure fair vindication but also aims at heightening the rate of accountability. As a result, accountability informs the way in which the society thinks about distinct platforms with regard to peacemaking, enhancement of democracy, and peacekeeping. The right to truth helps in redressing the past wrongs and consolidating a shaky as well as a vulnerable democracy. Making the state criminals fully accountable of their mistakes says a lot about the nation’s democracy and is a formula to lasting harmony. Nevertheless, it ought to be understood that the right to truth and accountability challenge has political, legal, and ethical dimensions; hence, it is important to recognise and focus on the three angles. It is a grave mistake for the human rights society and movement to allow people to perceive it in a moralistic or legalistic stance. Inevitably, most people have seen the movement as well as the ECtHR as a grossly obdurate, vindictive, opposed to chances of reconciliation, uncompromising, and immensely naïve about the realities of politics23. For that reason, there is a need to take a realistic and sober view of the political constraints even when proposing for measures of accountability. This does not mean that such perception calls for surrender of the nation’s principle but the right to truth is politically desirable as it goes a long way to realising the idea of having a sound democracy. The right to truth is also derived from the principles relating to freedom of expression and the obvious notion that one cannot defend a reputation that they do not have or deserve. For instance, in the case of Castells V. Spain24, the ECtHR ruled that failure of the Spanish courts to permit Castels to prove the truth of his statements in a case of defamation was a direct violation of his right to expression, which was unjustifiable in a democratic society. Therefore, the right to truth is a rational ground to making sure that there is a sense of accountability and should not be underrated. In conclusion, it is apparent that the right to truth promotes accountability. The ECtHR in the case of El-Masri paid a high though concealed tribute to the Human Right’s long standing case law. The exceptional step that was made by Strasbourg judges in recognising the social value of maintaining a sound system of historical truth with regard to grave breaches is unquestionably to be encouraged and welcomed. This is because it echoes on the need for the society to be aware on the activities of the government in their effort to eliminate terrorism. The right to truth makes victims and the public in general aware of various human rights oriented violations; hence, making the government more accountable for their misconducts in a democratic society. Bibliography Annual Report of the Inter-American Commission on Human Rights (2013). ICCPR, supra note 18, art. 6. Antkowiak, T., Truth as Right and Remedy in International Human Rights Experience, 23MICH. J. INT’L L. 977 (2002). http://digitalcommons.law.seattleu.edu/faculty/421 BBC News, "Judge attacks human rights court", BBC News Online, (4 April 2009). Braithwaite, J., A Future Where Punishment Is Marginalized: Realistic or Utopian?, UCLA Law Review, 1727, 1743 (2013). Castels v. Spain (1992). Christoffersen, J.; Madsen, M., The European Court of Human Rights Between Law and Politics (Oxford University Press 2013). El-Masri v Macedonia, (2012). European Court of Human Rights, Case of El-Masri v. 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