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THE ELUSIVE RIGHT TO TRUTH IN TRANSITIONAL HUMAN RIGHTS JURISPRUDENCE

  • James A Sweeney (a1)
Abstract

This article undertakes a comparative legal analysis of the scope of an emerging legal duty to find the truth about historical human rights abuses after periods of political transition. There is substantial inconsistency between human rights regimes on how they establish temporal jurisdiction in their transitional jurisprudence, which has not yet been systematically investigated. This contribution fills the gap in the literature by identifying and critiquing the way in which the right to truth in times of transition is both expressly and implicitly vindicated in the decisions of the Human Rights Committee, and the regional jurisprudence of the Inter-American Court of Human Rights and European Court of Human Rights (the conclusion also addresses the less voluminous African regional jurisprudence). It is argued that the ‘underlying values’ of human rights treaties can provide a foundation for a powerful but finite right to truth.

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References
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1 Report of the Secretary General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Situations (2004) UN Doc S/2004/616, 4, 17.

2 Teitel, R, Transitional Justice (Oxford University Press 2000).

3 ibid, 71.

4 Inter-American Commission on Human Rights, The Right to Truth in the Americas (ACmHR 2014).

5 See Groome, D, ‘The Right to Truth in the Fight against Impunity’ (2011) 29 BerkJIntlL 175, 175.

6 For example contrast the more tempered conclusion of Y Naqvi, ‘The Right to the Truth in International Law: Fact or Fiction?’ (2006) 88 IRRC 245 (discussed further below) with Szoke-Burke, S, ‘Searching for the Right to Truth: The Impact of International Human Rights Law on National Transitional Justice Policies’ (2015) 33 BerkJIntlL 526 , who found that the right to truth is, ‘a legally binding (lex lata) norm’.

7 The term ‘jurisprudence’ here, and throughout, refers to the judicial and quasi-judicial findings of international human rights enforcement bodies in contentious proceedings. In addition to the findings of the European, Inter-American and African Courts of Human (and Peoples’) Rights this includes, therefore, the ‘Views’ of the Human Rights Committee of the ICCPR. We shall also more briefly note relevant jurisprudence of the Inter-American and African Commissions on Human (and Peoples’) Rights.

8 Teitel (n 2) 72, noting the varied sources and forms of ‘transitional truths’; See also Lawry-White, M, ‘The Reparative Effect of Truth Seeking in Transitional Justice’ (2015) 64 ICLQ 141 , arguing for an ‘holistic’ approach to transitional justice and truth seeking rather than relying upon a single method (such as prosecutions alone, especially where for institutional or political reasons only a small number of alleged perpetrators could be tried).

9 See Szoke-Burke (n 6) 532.

10 Roht-Arriaza, N, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law’ (1990) 78 CLR 449 .

11 Orentlicher, D, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 YaleLJ 2537 .

12 J Méndez, ‘Accountability for Past Abuses’ (1997) HRtsQ 255.

13 This is not only a problem for the right to truth. There have been similar concerns about the inability of human rights courts to require the restitution of property taken prior to ratification of the relevant human rights treaty. See Allen, T, ‘Restitution and Transitional Justice in the European Court of Human Rights’ (2007) 13 ColumJEurL 1 ; Buyse, A, Post-Conflict Housing Restitution (Intersentia 2008); and Sweeney, JA, ‘Law and Policy on Post-Conflict Restitution’ in Saul, M and Sweeney, JA (eds), International Law and Post-Conflict Reconstruction Policy (Routledge 2015).

14 Or accept the contentious jurisdiction of the relevant enforcement body, if such acceptance is a step additional to ratification.

15 See art 28 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

16 See Koroma, A, ‘Assertion of Jurisdiction by the International Court of Justice’ in Capps, P et al. (eds), Asserting Jurisdiction: International and European Legal Perspectives (Hart 2003) 196 , noting, in relation to the International Court of Justice, that where its jurisdiction derives from a treaty, the potential retroactivity of the Court's jurisdiction is separate to retroactivity of the obligations arising out of the treaty itself.

17 See Šilih v Slovenia (App No 71463/01) (2009) 49 EHRR 996, para 140, discussed in depth below.

18 Roht-Arriaza discussed, ‘the problem of successor governments’ but did not directly address the issue of admissibility ratione temporis in human rights law: Roht-Arriaza (n 10) 432; likewise Orentlicher's analysis (n 11) of prosecutory duties in respect of a ‘prior regime’ did not examine admissibility ratione temporis; and whilst Mendez found that the State's obligation, ‘to disclose to the victims, their families, and society all that can be reliably established about [crimes against humanity]’ was correlative to, ‘a right to know the truth’ (Mendez (n 12) 261), he also did not examine the temporal problem in respect of many ‘past abuses’. Eva Brems did examine it briefly in her analysis of the European Court of Human Rights’ transitional jurisprudence: Brems, E, ‘Transitional Justice in the Case Law of the European Court of Human Rights’ (2010) 5 IJTJ 282 , 287—but without linking the duty to investigate to the emerging right to truth. Of studies of the right to truth per se, none of Groome (n 5), Naqvi (n 6), Szoke-Burke (n 6) nor, more recently, Panepinto examined the temporal issue, although Panepinto alluded to obligations upon ‘successor regimes’ to investigate ‘historic abuses’: A Panepinto, ‘The Right to the Truth in International Law: The Significance of Strasbourg's Contributions’ (2017) Legal Studies (Early View, available at <http://onlinelibrary.wiley.com/doi/10.1111/lest.12172/full>. Pinpoint references to this piece will refer to the Early View pdf.

19 Established by the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, and empowered to receive individual communications by the Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976).

20 Established by the American Convention on Human Rights (adopted 21 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR). The focus of this piece is upon the enforcement regime established by the ACHR. For members of the Organisation of American States that have not ratified the ACHR, a separate regime based upon the 1948 American Declaration and monitored by the Inter-American Commission applies: see American Declaration of the Rights and Duties of Man (1949) 43 AJIL Supp 133.

21 Established by the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), as amended.

22 The focus is upon identifying and analysing jurisprudence that is ‘functionally equivalent’ in its potential to vindicate the right to truth, rather than on comparing the jurisprudence on formally equivalent treaty provisions. On functionality see Zweigert, K and Kötz, H, An Introduction to Comparative Law (3rd edn, Oxford University Press 1998) 34 .

23 The term ‘transitional jurisprudence’ is used here to describe the jurisprudence of human rights enforcement bodies relating to societies in transition. See eg Buyse, A and Hamilton, M (eds), Transitional Jurisprudence and the ECHR (Cambridge University Press 2011).

24 UNCHR, ‘Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity’, UN Doc E/CN.4/2005/102.

25 Adopted and proclaimed by UNGA Resolution 60/147 (16 December 2005), and also known as the ‘Joinet/Orentlicher Principles’.

26 For a discussion of the Basic Principles and Guidelines, also known as the van Boven/Bassiouni Principles, see Zwanenburg, M, ‘The van Boven/Bassiouni Principles: An Appraisal’ (2006) 24 NQHR 641 .

27 Human Rights Commission Resolution 2005/66 (20 April 2005) UN Doc E/CN.4/RES/2005/66; Human Rights Council Resolution 12/12 (October 12 2009) UN Doc A/HRC/RES/12/12; UNGA Resolution 68/165 (18 December 2013) UN Doc A/RES/68/165.

28 See UNGA Resolution 65/196 (21 December 2010) UN Doc A/RES/65/196.

29 On the nature of soft law, and the Basic Principles and Guidelines as an example thereof, see Shelton, D, ‘Soft Law’ in Armstrong, D (ed), Routledge Handbook of International Law (Routledge 2008) 72 .

30 Human Rights Council Resolution 18/7 (13 October 2011) UN Doc A/HRC/RES/18/7.

31 Of course, there are exceptions to this trend, including the Spanish pacto del olvido (pact of forgetting, in respect of the Franco regime), but even this may be dissipating: Davis, M, ‘Is Spain Recovering Its Memory? Breaking the ‘‘Pacto del Olvido’’’ (2005) 27 HRtsQ 858 .

32 See Hayner, P, Unspeakable Truths: Transitional Justice and the Challenges of Truth Commissions (2nd edn, Routledge 2011).

33 On lustration see Czarnota, A, ‘Lustration, Decommunisation and the Rule of Law’ (2009) 1 Hague Journal on the Rule of Law 307 ; Sweeney, JA, The European Court of Human Rights in the Post-Cold War Era (Routledge 2012) 127 .

34 It is also worth noting the impact of non-State actors in this regard: Hayner (n 32) 16; Bickford, L, ‘Unofficial Truth Projects’ (2007) 29 HRtsQ 994 ; Visoka, G, ‘Arrested Truth: Transitional Justice and the Politics of Remembrance in Kosovo’ (2016) 8 Journal of Human Rights Practice 62 .

35 UN Human Rights Commission, ‘Study on the Right to Truth’ (8 February 2006) UN Doc E/CN.4/2006/91 (hereafter ‘2006 Study’) para 14.

36 AZAPO v President of the Republic of South Africa 1996(4) SA 671 (CC). The Constitutional Court upheld the constitutionality of the Commission's power to grant amnesties.

37 2006 Study (n 35) ‘Summary’ and para 55.

38 For example Section I of the 2006 Study is entitled, ‘Legal and Historical Basis for the Right to Truth’. See 2006 Study (n 35) 4.

39 Commonly understood to be stated authoritatively in art 38 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October April 1945) 3 Bevans 1179: see Thirlway, H, ‘The Sources of International Law’ in Evans, M (ed), International Law (4th edn, Oxford University Press 2014) 94 .

40 Art 32, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 12 December 1977, entered into force 7 December 1979) 1125 UNTS 3.

41 Indeed this is expressly noted in the preamble to UN Human Rights Commission Res 2005/66 (n 27), which states that, ‘adequate steps to identify victims should also be taken in situations not amounting to armed conflict, especially in cases of massive or systematic violations of human rights …’. See also Panepinto (n 18) 3.

42 Art 24(2), International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into effect 23 December 2010) 2716 UNTS 3.

43 There are currently 56 States Parties to the Convention, and a total of 96 signatory States. It has not been ratified by Russia, China, the USA, or the UK: UN Treaty Series, ‘International Convention for the Protection of All Persons from Enforced Disappearance’ <https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-16&chapter=4&clang=_en>.

44 See also Panepinto (n 18) 5.

45 UN Human Rights Commission, ‘Eighth Annual Report and List of States which, Since 1 January 1985, Have Proclaimed, Extended or Terminated a State of Emergency’ (26 June 1995) UN Doc E/CN.4/Sub.2/1995/20*, para 40 (hereafter ‘Despouy Report’, after its author); Szoke-Burke (n 6) 539.

46 Despouy Report (n 45).

47 Note the ongoing work of the International Law Commission on this topic, summarizing much of the existing practice and scholarship in this field: International Law Commission, ‘Analytical Guide to the Work of the International Law Commission: Identification of Customary International Law’ (ILC 30 June 2017) <http://legal.un.org/ilc/guide/1_13.shtml>. See also the discussion in Panepinto (n 18) 19ff.

48 Naqvi (n 6).

49 T Meron, Human Rights and Humanitarian Law as Customary Law (Clarendon 1989) 94. For criticism of this approach see Simma, B and Alston, P, ‘The Sources of Human Rights Law: Custom, Jus Cogens and General principles’ (1992) 12 AustYBIL 82 .

50 Naqvi (n 6) 268.

51 Naqvi (n 6) 273.

52 Bjorge, E, The Evolutionary Interpretation of Treaties (Oxford 2014), although note that at 168ff Bjorge argues that the evolutive approach to temporal jurisdiction taken in Šilih v Slovenia (n 17) was superfluous as temporal jurisdiction could have been established on more traditional grounds.

53 See Tyrer v UK (App No 5856/72) (1978) 2 EHRR 1, para 31. Note also that art 32(2) ECHR and art 3(2) of the 1998 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights expressly recognize the authority of each court to decide upon disputes as to its jurisdiction: Protocol to the African Charter (adopted 10 June 1998, entered into force 25 January 2004) <http://www.refworld.org/docid/3f4b19c14.html>. Although, perhaps oddly, when the 1998 Protocol is replaced by the 2008 Protocol on the Statute of the African Court of Justice and Human Rights there will be no direct equivalent provision governing the new African Court: see Protocol on the Statute of the African Court of Justice and Human Rights (adopted 1 July 2008, not in force) <http://www.refworld.org/docid/4937f0ac2.html>. Whilst there is no formal equivalent to these provisions in the treaties founding the ICCPR Human Rights Committee and American Court of Human Rights, we shall see that there is no shortage of jurisprudence on those bodies’ jurisdiction.

54 For further discussion of this principle see eg Letsas, G, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press 2007).

55 Note eg Dembour's criticism of the slow evolution of rights for transsexuals in European human rights law: Dembour, M, Who Believes in Human Rights? Reflections on the European Convention (Cambridge University Press 2006) 238 .

56 See Canivet, G, ‘Trans-Judicial Dialogue in a Global World’ in Muller, S and Richards, S (eds), Highest Courts and Globalisation (Hague Academic Press 2010).

57 Report of the Study Group of the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (13 April 2006) A/CN.4/L.682.

58 Glenn, HP, The Cosmopolitan State (Oxford University Press 2013) 244 .

59 Note the opposing interventions of Russia and Lithuania on the annexation of the Baltic States in Kononov v Latvia (GC) (App No 36376/04) (2010) ECHR 667.

60 Note the Turkish intervention in Perinçek v Switzerland (GC) (App No 27510/08) (2016) 63 EHRR 6, discussing the Armenian genocide.

61 Quinteros v Uruguay (Comm No 107/1981), View of 21 July 1983, UN Doc CCPR/C/OP/2, 138 (1990) para 14 (emphasis added).

62 Although to be fair as far back as 1977 the Inter-American Commission on Human Rights had commented that disappearances affect not only the rights of the disappeared person, but also constituted ‘a true form of torture for the victims’ family and friends because of the uncertainty that they experience as to the fate of the victim’: Inter-American Commission on Human Rights, ‘Annual Report of the Inter-American Commission on Human Rights 1977’, OEA/Ser.L/V/II.43, Doc. 21 corr. 1 (1978) Pt II; note also the discussion in Inter-American Commission on Human Rights, The Right to Truth in the Americas (n 4) 28.

63 See the ‘Street Children’ (Villagran-Morales et al.) v Guatemala, Inter-American Court of Human Rights (19 November 1999) Series C No 63, para 176; Bámaca Velásquez v Guatemala (Merits), Inter-American Court of Human Rights (25 November 2000) Series C No 70, para 164; Myrna Mack Chang v Guatemala, Inter-American Court of Human Rights (25 November 2003) Series C, No 101, para 274.

64 See Kurt v Turkey (App No 24276/94) (1999) 27 EHRR 373, para 130ff.

65 Orentlicher (n 11) 2575.

66 See eg Sarma v Sri Lanka (Comm No 950/2000), View of 16 July 2003, UN Doc CCPR/C/78/D/950/2000 (2003) para 9.5; Boucherf v Algeria (Comm No 1196/2003), View of 30 March 2006, UN Doc CCPR/C/86/D/1196/2003 (2006) para 9.7; Saadoun v Algeria, (Comm No 1806/2008), View of 22 March 2013, UN Doc CCPR/C/107/D/1806/2008 (2013) para 8.5.

67 See Saadoun (n 66) para 2.12; BBC, ‘Algeria Country Profile’ (BBC, 27 January 2017) <http://www.bbc.co.uk/news/world-africa-14118852>.

68 Saadoun (n 66) para 4.6.

69 ibid, para 4.7.

70 ibid, para 8.8.

71 See the discussion at (n 115).

72 See also HRC, ‘General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ UN Doc CCPR/C/21/Rev.1/Add. 1326 (2004).

73 H.G.P. & S.P. v Trinidad and Tobago, (Comm No 268/1987), Decision of 3 November 1987, UN Doc CCPR/C/37/D/268/1987 (1989) para 6.2.

74 See Saadoun (n 66) para 10; Sankara v Burkino Faso (Comm No 1159/2003), View of 28 March 2006, UN Doc CCPR/C/86/D/1159/2003 (2006) para 14.

75 See Myrna Mack Chang (n 63) para 274, discussed in the text at (n 101).

76 Hugo Rodriguez v Uruguay, (Comm No 322/1988), View of 19 July 1994, UN Doc CCPR/C/51/D/322/1988 (1994) para 12.3; see also Blanco v Nicaragua (Comm No 328/1988), View of 20 July 1994, UN Doc CCPR/C/51/D/328/1988 (1994) para 5.3, where the HRC found that, ‘the authorities of any State party to the Covenant are under an obligation to investigate alleged human rights violations and to make available appropriate judicial remedies and compensation to victims of such violations, even if they are attributable to a previous administration’.

77 S.E. v. Argentina, (Comm No 275/1988), Decision of 26 March 1990, UN Doc CCPR/C /38/D/275/1988 (1990).

78 ibid.

79 See also RAVN et al. v Argentina, (Comm Nos 343, 344 and 345/1988), Decision of 26 March 1990, UN Doc CCPR/C/38/D/344/1988 (1990).

80 S.E. (n 77) para 3.2.

81 Lovelace v Canada, (Comm No R.6/24), View of 30 July 1981, UN Doc Supp. No 40 (A/36/40) at 166 (1981) para 7.3.

82 S.E. (n 77) para 5.4.

83 Sarma v Sri Lanka (n 66) para 2.1ff. Note that the author actually thought he caught a glimpse of his son in a military van in 1991, but never subsequently.

84 ibid, para 1.7. But note that the ethnic conflict in Sri Lanka continued until the military defeat of the ‘Liberation Tigers of Tamil Eelam’ in 2009, so this is hardly a paradigmatic ‘transitional’ case. For a basic timeline see BBC, ‘Sri Lanka Country Profile’ (BBC, 18 April 2017) <http://www.bbc.co.uk/news/world-south-asia-11999611>.

85 ibid, para 6.2.

86 ibid, para 9.4.

87 ibid, para 9.5.

88 ibid para 9.5.

89 ibid, para 11.

90 Konye v Hungary, (Comm No 520/1992), Decision of 4 April 1994, UN Doc CCPR/C/50/D/520/1992 (1994) para 6.4. A slightly different formulation has occasionally also been used, according to which, ‘A persistent violation is understood to mean the continuation of violations which the State party committed previously, either through actions or implicitly’: see Kurowski v Poland, (Comm No 872/1999), Decision of 18 March 2003, UN Doc CCPR/C/77/D/872/1999, para 6.4.

91 Sankara (n 74).

92 See BBC, ‘Burkina Faso profile – timeline’ (BBC, 8 June 2017) <http://www.bbc.co.uk/news/world-africa-13072857>.

93 ibid, para 6.2, summarizing the earlier admissibility decision.

94 ibid, para 6.3.

95 ibid, para 12.2.

96 Cifuentes v Chile, (Comm No 1536/2006), Decision of 28 July 2009, UN Doc A/64/40 vol II (2009), Annex VIII.J, 491, para 8.5; see also a virtually identical inadmissibility finding in Yurich v Chile, (Comm No 1078/2002), Decision of 2 November 2005, UN Doc CCPR/C/85/D/1078/2002 (2005), para 6.4.

97 Indeed, the declaration in Cifuentes (ibid) is notable because, despite being couched as a limitation on the HRC's jurisdiction, its terms were that the HRC competence would apply, ‘in respect of acts occurring after the entry into force for [Chile] of the Optional Protocol [in August 1992] or, in any event, to acts which began after 11 March 1990’—ie over two years before the Protocol came into effect for Chile.

98 See the joint concurring opinion of Judges Tulkens, Spielmann, Sicilianos and Keller in El-Masri v the former Yugoslav Republic of Macedonia (App No 39630/09) (2013) 57 EHRR 25 and the joint partly dissenting opinion of Judges Ziemele, de Gaetano, Laffranque and Keller in Janowiec and Others v Russia (GC) (App Nos 55508/07 and 29520/09) (2014) 58 EHRR 30. These are discussed further below.

99 Velásquez Rodríguez v Honduras, Inter-American Court of Human Rights (29 July 1988) Series C No 4, para 155.

100 ibid, para 181.

101 Myrna Mack Chang (n 63) paras 274–275; see also Bámaca-Velásquez v Guatemala (Reparations and Costs), Inter-American Court of Human Rights (22 February 2002) Series C No 91, para 73ff.

102 See Rodríguez Vera et al. v Colombia, Inter-American Court of Human Rights (14 November 2014) Series C No 287, para 570ff, including the requirement that the respondent State prepare, exhibit and disseminate an audio-visual documentary about the events of the case. In the Myrna Mack Chang case, amongst several other measures of reparation, the IACtHR required that a well-known street or square in Guatemala City be named in honour of the victim: Myrna Mack Chang (n 63) para 286.

103 See eg The Massacres of El Mozote and nearby places v El Salvador, Inter-American Court of Human Rights (25 October 2012) Series C No 252, para 316.

104 Rodríguez Vera (n 102) para 88.

105 For the sake of thoroughness, a couple of outlying cases need to be acknowledged. First, in the case of Gudiel Álvarez et al. v Guatemala, Inter-American Court of Human Rights (20 November 2012) Series C No 253 the IACtHR made a rare express art 5 finding on the right to truth, where the State had failed to provide important information to a truth commission established after the end of the Guatemalan civil war. The failure to cooperate fully with the truth commission (that the State itself had established) prevented family members from knowing the ‘historical truth’, and amounted to a further violation of art 5 ACHR. Second, in the case of Gomes Lund et al. v Brazil, Inter-American Court of Human Rights (24 November 2010) Series C No 219 the specific facts of the case led to the IACtHR examining the right to truth within arts 8 and 25 ACHR alongside art 13—the right to free expression, and the freedom to seek, receive, and impart information and ideas of all kinds. Nevertheless, the IACtHR does not generally underpin its findings on the right to truth with art 13 ACHR.

106 Bámaca Velásquez (Merits) (n 63) para 160.

107 ibid, para 165.

108 The Barrios Family v Venezuela, Inter-American Court of Human Rights (24 November 2011) Series C No 237, para 301.

109 The ‘Las Dos Erres’ Massacre v Guatemala, Inter-American Court of Human Rights (24 November 2009) Series C No 211, para 213.

110 ibid, para 217.

111 Quinteros (n 61) para 14.

112 Lucio Parada Cea et al. v El Salvador, Inter-American Commission on Human Rights (27 January 1999) Report No 1/99, OEA/Ser.L/V/II.106, doc 6 rev, para 150.

113 ibid, para 151.

114 Rodríguez Vera (n 102).

115 Bámaca Velásquez v Guatemala (Merits) (n 63) para 201 (emphasis added); see also Chumbipuma Aguirre et al. v Peru (the Barrios Altos Case), Inter-American Court of Human Rights (14 March 2001) Series C No 75, para 48; see also similar language in Rodríguez Vera (n 102) para 509 amongst others.

116 Myrna Mack Chang (n 63) para 140.

117 ibid, para 211.

118 Velásquez Rodríguez (n 99) para 184.

119 Teitel (n 2) 125.

120 Roht-Arriaza (n 10) 467; Orentlicher (n 11) 2576ff.

121 Blake v Guatemala (Merits), Inter-American Court of Human Rights (24 January 1998) Series C No 36, para 2.

122 BBC, ‘Guatemala Country Profile’ (BBC, 3 January 2017) <http://www.bbc.co.uk/news/world-latin-america-19635877>.

123 Note that the IACtHR examined admissibility ratione temporis in both its 1996 judgment on Preliminary Objections, and in the 1998 judgment on the merits, reaching the same result. See Blake (Merits) (n 121) and Blake v Guatemala (Preliminary Objections), Inter-American Court of Human Rights (2 July 1996) Series C No 27.

124 Blake (Merits) (n 121) 82.

125 ibid, para 86.

126 ibid, para 67.

127 It is also worth mentioning the Separate Opinion of Judge AA Cançado Trindade in Blake (Merits) (n 121): in the case of forced disappearances he argued against the application of ‘a rigid postulate of the law of treaties’ (namely the rules on admissibility ratione temporis). ‘Human rights’, he argued, ‘are demanding a revitalisation of the law of treaties.’

128 Blake (Merits) (n 121) para 124. Note that there was no violation of art 25 ACHR in this case, for the reasons given in paras 98–104.

129 See eg Heliodoro Portugal v Panama, Inter-American Court of Human Rights (12 August 2008) Series C No 186, paras 146–147 on arts 8 and 25, and para 175 on art 5; Gomes Lund (n 105) para 200 on arts 8 and 25, and para 242 on art 5.

130 Serrano-Cruz Sisters v El Salvador (Preliminary Objections), Inter-American Court of Human Rights (23 November 2004) Series C No 118, para 84.

131 Moiwana Community v Suriname, Inter-American Court of Human Rights (15 June 2005) Series C No 124.

132 Under President Venetiaan, Suriname officially apologized for the massacred in 2006. However, Bouterse became president again in 2010, this time by democratic means, and was re-elected in 2015: BBC, ‘Suriname Country Profile’ (BBC, 25 January 2017) <http://www.bbc.co.uk/news/world-latin-america-19997673>.

133 Moiwana Community (n 131) para 34(e).

134 ibid, para 43.

135 ibid, para 138(e). Such claims by transitional States for special treatment in human rights law have been termed as claims for ‘transitional relativism’: see Sweeney (n 33) 3.

136 Moiwana Community (n 131) para 138(f).

137 ibid, para 146.

138 ibid, para 147.

139 ibid, para 94.

140 ibid, para 103.

141 Sweeney (n 33) 72.

142 Kurt v Turkey (n 64) para 130ff.

143 Çakıcı v Turkey (App No 23657/94) (2001) 31 EHRR 5, para 99.

144 Cyprus v Turkey (App No 25781/94) (2002) 35 EHRR, para 156 (emphasis added).

145 Tanlı v Turkey (App No 26129/95) (2002) 35 EHRR 30, para 159; Jeli ć v Croatia (App No 57856/11) (2015) 61 EHRR 43, para 111.

146 Gürtekin and others v Cyprus (dec) (App Nos 60441/13, 68206/13 and 68667/13) ECHR 11 March 2014, para 34.

147 Shovgurov v Russia (dec) (App No 17601/12) ECHR 25 August 2015, para 75.

148 Of course, the other systems have looked into the nature of familial relationships in relation to claimed inhuman treatment of the next of kin. The IACtHR for example has drawn a distinction between those close family members who can be ‘presumed’ to have suffered harm to their mental and moral integrity, and other next of kin in relation to which it must evaluate whether particularly close ties existed. However this jurisprudence applies equally to disappearances and ‘confirmed killings’: see Barrios Family (n 108) para 302.

149 See eg Aksoy v Turkey (App No 21987/93) (1997) 23 EHRR 553, para 95.

150 See Akdivar and Others v Turkey (App No 21893/93) (1997) 23 EHRR143, para 97; But see the concern expressed previously about this very approach in the Joint Separate Opinion of Judges Pinheiro and De Meyer in W v UK (App No 9749/82) (1988) 10 EHRR 29. See also Lee, A, ‘Focus on Article 13 ECHR’ (2015) 20 JR 33, 39.

151 Kaya v Turkey (App No 22729/93) (1999) 28 EHRR 1, para 107; Orhan v Turkey (App No 25656/94) ECHR 18 June 2002, ECHR 2002, para 384.

152 El-Masri (n 98) para 191 (emphasis added).

153 ibid, para 192.

154 See Kurt v Turkey (n 64) paras 133–134, noted above.

155 El-Masri (n 98) para 263.

156 El-Masri (n 98) paras 264–265. The same approach was taken in the case of Al Nashiri v Poland (App No 28761/11) (2015) 60 EHRR 16, even though the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counteracting terrorism, who had been invited to address a public hearing in the case, argued that the right to truth also implicated Article 10 ECHR. See Al Nashiri, para 483.

157 Brecknell v UK (App No 32457/04) (2008) 46 EHRR 42, para 66.

158 Council of Europe, ‘Chart of Signatures and Ratifications of Treaty 005’ (Council of Europe, 28 June 2017) <http://www.coe.int/en/web/conventions/search-on-treaties/-/conventions/treaty/005/signatures?p_auth=K81dNial>.

159 Brecknell (n 157) paras 68–69 (emphasis added).

160 See eg Gasyak v Turkey (App No 27872/03) ECHR 13 October 2009, amongst many others.

161 See eg Amuyeva v Russia (App No 17321/06) ECHR 25 November 2010, likewise amongst many others.

162 Al-Skeini v the United Kingdom (App No 55721/07) (2011) 53 EHRR 18, para 164.

163 Breckell (n 157), para 66; Al-Skeini (n 162) para 166.

164 See eg Aslakhanova and Others v Russia (App Nos 2944/06 and 8300/07, 50184/07, 332/08, 42509/10) ECHR 18 December 2012, para 210.

165 ibid, para 225.

166 Varnava v Turkey (App No 16064/90) (2010) 50 EHRR 21, para 148; the ECtHR had already observed that disappearances have a continuing dimension in the judgment in the inter-State case of Cyprus v Turkey (n 144): see para 136. On continuing violations at the ECtHR see generally, A Van Pachtenbeke and Y Haeck, ‘From De Becker to Varnava: The State of Continuing Situations in the Strasbourg Case Law’ (2010) EHRLR 47.

167 Varnava (n 166) para 148.

168 ibid, para 150. In its 1996 judgment in Loizidou v Turkey (App No 15318/89) (1997) 23 EHRR 513 the ECtHR had already established Turkey could be held responsible for human rights violations in northern Cyprus, and that the Court would have temporal jurisdiction over other types of violation continuing after the critical date for Turkey.

169 Varnava (n 166) para 194.

170 ibid, para 193.

171 ibid, para 202.

172 Skendži ć and Krznari ć v Croatia (App No 16212/08) ECHR 20 January 2011. Compare Skendži ć and Krznari ć with Palić v Bosnia and Herzegovina (App No 4704/04) ECHR 15 February 2011, where the ECtHR gained temporal jurisdiction, but declined to find a violation of the procedural limb of art 2.

173 Sankara (n 74); Moiwana Community (n 131).

174 Janowiec v Russia (Chamber) (App Nos 55508/07 and 29520/09) ECHR 16 April 2012, para 16; Janowiec v Russia (GC) (n 98) para 19.

175 See in particular Janowiec v Russia (Chamber) (n 174) para 163.

176 Janowiec (Chamber) (n 174) para 167.

177 ibid, para 163.

178 ibid, para 166.

179 Janowiec (GC) (n 98) para 187.

180 ibid, para 188.

181 Bleĉić v Croatia (App No 59532/00) (2006) 43 EHRR 48, para 86. On the ECHR's transitional property jurisprudence see Buyse, A, Post-Conflict Housing Restitution: The European Human Rights Perspective with a Case Study on Bosnia and Herzegovina (Intersentia 2008). See also eg Papamichalopoulos v Greece (App No 14556/89) (1993) 16 EHRR, concerning property de facto expropriated by the Greek military government in 1967; and Loizidou v Turkey [1996] ECHR 70, concerning property rendered inaccessible by the establishment of the so-called ‘Turkish Republic of Northern Cyprus’.

182 Šilih v Slovenia (n 17) para 147.

183 ibid, para 152.

184 ibid, para 130.

185 ibid, para 159.

186 ibid.

187 ibid, para 161.

188 ibid, para 162.

189 ibid, para 163.

190 ibid (emphasis added).

191 It is fair to say that not all of the judges were particularly happy with the new test: see in particular the Concurring opinion of Judge Lorenzen; the Concurring opinion of Judge Zagrebelsky joined by Judges Rozakis, Cabral Barreto, Spielmann and Sajó; and the Joint dissenting opinion of Judges Bratza and Türmen.

192 See Tuna v Turkey (App No 22339/03) ECHR 19 January 2010, para 58ff; Stanimirović v Serbia (App No 26088/06) ECHR 18 October 2011, para 28.

193 Including Agache and Others v Romania (App No 2712/02) ECHR 20 October 2009; Şandru and Others v Romania (App No 22465/03) ECHR 8 December 2009; Association ‘21 December 1989’ and Others v Romania (App Nos 33810/07 and 18817/08) ECHR 24 May 2011; Catalina Filip v Romania (App No 15052/09) ECHR 21 April 2015; Melnichuk and Others v Romania (App Nos 35279/10 and 34782/10) ECHR 5 May 2015.

194 Association ‘21 December 1989’ (n 193) para 142; Mocanu v Romania (Chamber) (App Nos 10865/09, 45886/07 and 32431/08) ECHR 13 November 2012, para 230. The Mocanu case was later referred to a Grand Chamber, which upheld and indeed expanded the findings of the Chamber but did not refer to the ‘knowing the truth’ in the same way: Mocanu v Romania (Grand Chamber) (App Nos 10865/09, 45886/07 and 32431/08) ECHR 17 September 2014.

195 Association ‘21 December 1989’ (n 193) para 144.

196 Note that Stanimirović v Serbia (App No 26088/06) ECHR 18 October 201, the ECtHR confirmed that the principles established in Šilih similarly applied to the procedural obligation, under Art 3 ECHR, to investigate ‘instantaneous’ instances of torture before the crucial date. Moreover by doing so the ECtHR abandoned the approach taken in earlier cases such as Burkov v Russia 2001 (dec) (App No 46671/99) ECHR 30 January 2001, in which by finding a complaint about the health effects of Communist era nuclear nesting in Semey (now in Kazakhstan) inadmissible ratione temporis, the possibility of a detachable procedural obligation under art 3 upon present-day Russia to investigate under was not considered at all.

197 Przemyk v Poland (App No 22426/11) ECHR 17 September 2013.

198 ibid, para 53.

199 ibid, para 74.

200 Dorado and Dorado Ortiz v Spain (dec) (App No 30141/09) ECHR 27 March 2012, para 36.

201 ibid. Note also that the ECtHR also found that, even if the events were characterized as a disappearance, the applicants had not displayed due diligence in making their application to, given that the application was only introduced in June 2009 although the right of individual petition to the Court had been available in Spain since 1981.

202 Janowiec (GC) (n 98) para 144; for a detailed analysis of this case see Heri, C, ‘Enforced Disappearance and the European Court of Human Rights’ ratione temporis Jurisdiction: A Discussion of Temporal Elements in Janowiec and Others v Russia ’ (2014) 12 JICJ 751 .

203 Janowiec (GC) (n 98) para 144.

204 ibid, para 146.

205 ibid, para 159.

206 ibid, para 151.

207 ibid, para 190ff.

208 ibid, para 117.

209 Sankara (n 74).

210 Serrano-Cruz Sisters (Preliminary Objections) (n 130).

211 The Serrano-Cruz Sisters case was about a disappearance, but because of a reservation by El Salvador the IACtHR was precluded from examining continuing situations and so the disappearance itself could not give rise to a violation of the ACHR. The IACtHR's examination of the next of kin's procedural rights is therefore comparable to the ECtHR jurisprudence on the duty to investigate instantaneous triggering events rather than on disappearances.

212 Zweigert and Kötz (n 22) 15.

213 See also Groome (n 5) but who perhaps underestimated the diversity of approaches between regimes identified here.

214 In Sudan Human Rights Organisation and Another v Sudan (2009) AHRLR 153 the African Commission found that the failure to investigate effectively a range of atrocities carried out by the Janjaweed militia amounted to a breach of the duty to provide immediate remedies, and violated arts 4 and 5 of the African Charter on Human and Peoples’ Rights (the right to life and the right to humane treatment). Likewise in Amnesty International and Others v Sudan (2000) AHRLR 297 the Commission held that holding an individual incommunicado, and refusing to inform the family if and where the individual is being held, is inhuman treatment of both the detainee and the family concerned. In its 2015 ‘Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa’, the Commission has also expressly linked art 9 ACHPR (right to free expression) to the right to truth, and has stressed that, ‘States shall not withhold information regarding gross violations of human rights or serious violations of international humanitarian law, including crimes under international law, and systematic or widespread violations of the rights to life, personal liberty, and security.’

215 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 (African Charter).

216 But note that the African Commission has found that the incommunicado detention of journalists and political dissidents amounts to a violation of the art 18 ACHPR right to family life of not only the detainees but also their family: Article 19 v Eritrea (2007) AHRLR 73, para 103.

217 See Canivet (n 56).

218 UNCHR, ‘Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity’ (n 24).

219 Basic Principles and Guidelines on the Right to a Remedy (n 25).

220 Indeed the African Commission has asserted temporal jurisdiction over continuing violations rooted in disappearances that occurred well before the African Charter was even adopted: JE Zitha & PJL Zitha v Mozambique (Comm No 361/08) ACHPR 23 February to 3 March 2011), (although note that the communication in this case was ruled inadmissible on other grounds).

221 Beneficiaries of Norbert Zongo v Burkina Faso (App No 013/2011) ACtHPR 28 March 2014.

222 Basic Principles and Guidelines on the Right to a Remedy (n 25).

223 See eg Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (adopted 26 November 1968, entered into force 11 November 1970) 754 UNTS 73.

224 Palić v Bosnia and Herzegovina (App No 4704/04) ECHR 15 February 2011.

225 Sweeney (n 33) 3.

The research underpinning this piece was first presented at a workshop arranged by The Center for Global Public Law and PluriCourts, University of Oslo, and held at Koç University, Istanbul, in September 2015. Thanks to the organisers and participants, in particular to Başak Çalı, for their insights. Later versions of this piece benefited from discussions with Kieran McEvoy, Steven Wheatley, and Alice Panepinto. Many thanks also to the anonymous reviewers at ICLQ.

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International & Comparative Law Quarterly
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