Victims of gross human rights violations have a right to know what took place and who was responsible. But what happens when the state obstructs the search for truth and justice? In our first essay in a new series of interventions, Boundaries of Expression, Jo Glanville explores the obstacles to upholding the right to truth and why it remains so contested.
In February, two historians were prosecuted in Poland. They were editors of a forensic landmark history, totalling nearly 2,000 pages, that investigated the fate of Jews in Poland during the second world war – just 10 per cent of the largest Jewish community in Europe survived. The niece of a wartime mayor claimed that in their book Night Without End, the historians had defamed her uncle in an account based on a survivor’s testimony. She won the legal action, supported by an organisation close to the government that champions its nationalist policy. The historians managed to appeal the judgment successfully six months later.
It is a case that demonstrates the pernicious influence of political players who seek to deny the truth and the dedicated struggle it takes for victims, their families, lawyers, journalists and historians to discover that truth, make it public and win the battle against revisionism and denial. Three years ago, it became a crime in Poland to discuss the country’s complicity in the Holocaust. More than 70 years after one of the most infamous atrocities in history, its facts are still contested.
The necessity of knowing and establishing the facts of gross human rights violations is now recognised as the right to truth: survivors and the relatives of victims have a right to know what happened, including who was responsible as well as the circumstances, and the state has an obligation to investigate such human rights breaches. It dates back to Article 32 of the Additional Protocol I to the Geneva Conventions 1949: the right of families to know the fate of their relatives and the duty of parties to armed conflict to search for missing persons.
An essential tool in the battle against impunity
Following the rise of enforced disappearances in the 1970s, particularly in Latin America, the right was later codified in the International Convention for the Protection of All Persons from Enforced Disappearance, which stipulates the right to know the truth of the circumstances of the disappearance, the status of the investigation and the fate of the disappeared. Its scope has been widely recognised, chiefly thanks to the efforts of the United Nations and the judgments of regional human rights courts, but also through the growth of truth commissions. The right to truth now applies to extrajudicial executions and torture, as well as the importance of establishing historical facts and learning from the past. It is an essential tool in the battle against impunity and a key component of transitional justice for countries emerging from conflict. It is not only about victims’ and their families’ right to know, it is about the benefit for society as a whole to reckon with its history and find reconciliation.
‘In placing a duty to investigate on the state, the right to the truth is a constituent element of the rule of law and therefore important for the functioning of a democratic society,’ says Melanie Klinkner, co-author of The Right to the Truth in International Law. ‘So much hinges on the truth, so much hinges on knowing what happened. You can use the right to the truth to enable the right to justice to be realised. The right to reparation and the right to have human remains returned require an independent investigation into what happened.’
Excavating the truth
The search for truth and justice currently has a particular resonance for us all at a time when we have never been more conscious of the damage caused by fake news and revisionism, and when historic crimes continue to be uncovered and demand investigation, from the discovery of a mass grave in the US, believed to be victims of the Tulsa race massacre in 1921, to the legacy of slavery. It is a right that is inextricably linked to our right to information and intrinsic to the right to freedom of expression. Over the past year alone, indigenous leaders in Canada are calling for further investigations, following the discovery of mass graves of children who were taken from their families to be educated in residential schools; in Northern Ireland, the UK government has announced an end to criminal prosecutions relating to the Troubles, closing down a path to truth as well as justice; in Bosnia, genocide denial has just been outlawed in an attempt to bring an end to revisionism and glorification of war criminals, 26 years after the Srbrenica massacre.
Excavating the truth is a very slow business. It can take years for inquiries or prosecutions to take place. Legal technicalities, cover ups, corruption, inadequate investigations and obstructive governments can derail attempts of families to discover the truth about the fate of relatives, as well as the chance of reparations. In May, the families of victims killed in Ballymurphy, Northern Ireland, finally saw justice 50 years after their deaths. At the time they were labelled terrorists; the inquest found that they were innocent civilians, killed by the British army during a time of unrest and violence following the introduction of internment. Two months later, the British government confirmed that it would introduce a statute of limitations on crimes that took place before 1998 in Northern Ireland, which will also apply to civil cases and inquests. It plans to introduce an ‘information recovery body’, modelled on a truth commission, where families can seek answers to what happened to their relatives, and an oral history project. The government maintains that it is ‘the best chance of giving more families some sense of justice through acknowledgement, accountability and restorative means’. But the proposal will derail current investigations and trials that are due to be heard (almost 1,200 cases are currently under consideration) and deny access to justice to those who still do not know the facts of what happened to their relatives at the hands of both paramilitary groups and British soldiers. It is also in breach of the right to life, as well as the government’s duty to investigate. Human rights lawyer Darragh Mackin, who represents victims of the Troubles, says that it will put a stop to around 1,000 cases in his law firm alone. He describes the proposal of a truth commission as ‘bizarre’.
‘We have seen before that individuals do not tend to engage in these processes. When there are no requirements or compulsion or incentive the reality is that most individuals tend not to engage. We have seen even in inquests where there is the power of compulsion how difficult it was to ensure the attendance of various soldiers. Who in their right mind would think that soldiers, who aren’t going to turn up even when summonsed, would voluntarily turn up to an oral history project to tell the truth years later about how they shot and killed civilians? It just isn’t going to happen. The reality is – truth is the solution, but it’s not a truth recovery process such as that.’
Brandon Lewis, Secretary of State for Northern Ireland, has stated that ending prosecutions is the best way to move Northern Ireland further along the road to reconciliation. ‘Truth is the first and foremost step to the road to reconciliation,’ says Mackin. ‘And it’s only when people tell the truth and it’s only when the truth comes out that people can effectively draw a line and reconcile what happened. To ask people to reconcile in a vacuum is quite frankly seeing it from the wrong end of a telescope.’
Survivors must tell their stories
Northern Ireland demonstrates the difficulty of establishing truth without justice. But justice itself may also not be enough to cement the truth of historical facts. In June, the conviction of former Bosnian Serb military leader Ratko Mladić was upheld following his appeal. He was convicted in 2017 on charges of genocide, crimes against humanity and war crimes including the killing of more than 8,000 Muslim men and boys in Srebrenica in 1995. The following month, Valentin Inzko, the outgoing head of Bosnia’s Office of the High Representative, outlawed genocide denial. Despite the sentence, Mladić continues to be glorified.
Satko Mujagić is a survivor of Omarska concentration camp, one of a number of camps in Bosnia where detainees were murdered and tortured. ‘It’s killing us twice,’ he says. ‘The glorification of crimes and war criminals is nothing else but perpetrating these crimes for the second time. That’s how it feels for me.’ Mujagić gave testimony at the International Criminal Tribunal for the former Yugoslavia and at the Court of Bosnia and Herzegovina in Sarajevo against high-ranking officials who were found guilty of atrocities in Omarska. ‘It gave me a lot of inner power afterwards simply to tell the story at the place where stories should be told. To say it in the court, in front of the person who’s responsible, who has been convicted based partly on your testimony is important for me. It’s really important for survivors not only to testify themselves but to see that other survivors are testifying and those responsible for the worst war crimes in Europe after the Holocaust are brought to justice and get the sentence they deserved, though often the sentences are low.’
Mujagić is currently pursuing a legal action, along with other survivors, against Serbia’s media regulator (REM) following a broadcast earlier this year on Happy TV in which the presenter Milomir Marić claimed that the camps Omarska and Trnopolje were ‘open’ and that detainees were free to leave whenever they wanted. He stated that world propaganda was intent on portraying Serbs as Nazis. His guest on the programme, the film director Predrag Antonijević, claimed that the detainee Fikret Alić, whose emaciated figure behind barbed wire became a symbol of atrocity in the international media, was suffering from tuberculosis. REM failed to take effective action against the television station.
Mujagić believes that Serbian leaders need to make a significant act of atonement to put an end to the culture of denial. He cites the example of former Chancellor of Germany Willy Brandt going down on his knees at the memorial to the Warsaw ghetto in 1970. ‘I am certain that the number of deniers would rapidly decrease, the number of people who would start respecting Serbs as a nation would increase, human relations at all levels would improve and you would see that this kind of pressure we are living in would go down.’
In Mexico, most atrocities do not even make it to trial. The rate of impunity runs at 99 per cent. The official figure for the number of disappeared is currently 90,000. María De Vecchi Gerli, right to truth and accountability co-ordinator for ARTICLE 19, believes that the figure runs to hundreds of thousands, as most people do not even report disappearances to the authorities. ARTICLE 19’s Mexico office created a dedicated role for supporting the right to truth six years ago. It is valiantly taking on the task that the state so abjectly fails to fulfil: excavating the truth and finding answers for families. ARTICLE 19 lobbies for the opening of state archives and state information about human rights violations and also works with relatives of victims and survivors to challenge the official narrative. The government’s current response to the violations is to make public apologies without investigating human rights abuse effectively and enabling impunity. ’They are not willing to go further specifically in terms of justice and guarantee of non-repetition,’ says María. ‘Every time the president speaks about massacres or human violations, torture or disappearances, he says they are not being committed in the country anymore.’
In the face of such denial, championing the truth appears overwhelming. For María, it is the families of victims who are central to the job. ‘When we think about 90,000 people who have been disappeared you just get lost in the figures. I think the important contribution is just telling the stories of the victims and relatives who are working every day for their stories to be heard and their relatives to be back at home or the cases to be brought to justice.’
Sandra Peake is chief executive of WAVE Trauma Centre in Northern Ireland. Her organisation has worked with 15,000 victims of the Troubles and receives up to 900 referrals a year. ‘The reality is if the families don’t push for information quite simply it’s not handed over,’ she says. ‘Most of them know the chances of prosecution are very remote, but they don’t want that to be removed. I remember a lady, her only son was killed in the 80s. She said, “I want the person who took his life always to wonder when the doorbell rings – is that somebody for him to address what happened to my son? I never want that to be removed.”’
María, Sandra and Satko are all powerful reminders that the right to truth is not an abstract principle. It is a response to the necessity of knowing the facts in the face of enormity that can rip lives and society apart, a necessity that is recognised as a human right and that must be respected. It is the survivors, their families and campaigners whose courageous pursuit of the truth, often decades after disappearances and atrocities, ensures that buried facts become known and that perpetrators are held accountable. To deny that right is a betrayal of the principles that both safeguard and recognise our humanity.
Jo Glanville is editor of Looking for an Enemy: eight essays on antisemitism (Short Books). Her journalism has appeared in the Guardian, New York Times, Financial Times and London Review of Books, among other publications. She was an award-winning editor of Index on Censorship and a former director of English PEN.