Lecture- Luisa Hairabedian Foundation V Meeting on Genocide The Right to the Truth as a Tool against Impunity “Irrespective of the possibility of punishing the perpetrators of crimes against humanity, the right of the families and the whole society to the actual finding of the truth remains enforceable.” 1. Genocide and Impunity Genocide is not a crime that can be committed by individuals in isolation, but rather it is a crime committed by those who govern a country, and by those who perform and obey their directions. Genocide is a crime structurally related to the repressive action of the state. It is the result of a totalitarian regime, in which individuals are considered superfluous and rulers use this criminal method, genocide, as the institutional nucleus of the regime with a view to remaining in power 1. In this respect, the law is an instrument of domination available to those who hold political and military power, which paves the way for the commision of acts of genocide within the institutional framework of a terrorist state that not only obtains the means necessary to carry out a systematic extermination plan, but also guarantees perpetrators’ impunity. The system created by this regime destroys any claim for justice, and a period of impunity on the part of the rulers begins. When the regime of the terrorist state falls, perpetrators of crimes intend to go unpunished through amnesty laws, pardons, or similar laws. It is this conception that the Right to the Truth aims to put an end to, when it comes to combating impunity for crimes against humanity. Given the impossibility of imposing criminal sanctions, the Right to the Truth arises to help society and the families of victims of crimes against humanity know what happened to them. The aim of the Right to the Truth is not only to know the truth as to what happened in history and relieve the families’ pain, but also to fulfil society’s right to be informed, to know why there was genocide and what happened, so that the whole society is able to understand its own history. In this lecture we will explain briefly the legal origin of the Right to the Truth, the Argentine precedent, and the original law case related to the application of the Right to the Truth to the Armenian genocide, which is actually being tried by Argentine courts. We will provide a short analysis of how a right arising from recent experiences of
1
Harendt, Hanna, “Los Orígenes del Totalitarismo”, Taurus, 1999 and Lafer, Celso. “Reconstrução dos Direitos Humanos”, Compañía das Letras, 1999.
passing from a dictatorship to a democracy, in Latin America, can be claimed in order to find the truth as to a genocide which occurred 90 years ago in the Caucasus. 2. The Right to the Truth- Introduction The Right to the Truth is an independent right2, which arises as a result of gross violations of human rights, and the most serious crimes of international concern. It is a right that cannot be waived. It consists in society’s entitlement to know the truth of the events, the identity of the participants, as well as the reasons for and the circumstances in which gross human rights violations took place, the purpose of which is both to find the truth and obtain a remedy, and to preserve the evidence and deter future crimes of this nature3. The precedents for the Right to the Truth may be found in International Humanitarian Law- that is, in rules related to the obligation of parties to an armed conflict to search for persons who are reported missing- and in International Human Rights Law- where the Right to the Truth as an independent right is connected to other fundamental human rights such as the right to justice, to identity, and to have access to information4. The Right to the Truth is contained in numerous international conventions and treaties on human rights, in which the main aim is not the criminal sanction, nor the state’s unlimited use of its punitive power on behalf of the whole society or the victims of serious human rights violations. Rather, the main aim is to serve as a means to have access to courts, so that society may initiate a criminal investigation of such violations and obtain a remedy for its legitimate claims for justice and truth, which result from such tragic experiences as human rights violations. In many instances, the Security Council and the General Assembly of the United Nations have reaffirmed that establishing the truth about crimes against humanitygenocide, war crimes, etc. - and gross human rights violations is necessary for the consolidation of peace, and is an integral part of the reconciliation process.5 In national and international jurisprudence, the Right to the Truth is considered a peremptory norm, or jus cogens. Thus, it is called an “inalienable right”, an “imprescriptible right”, an intangible and “non-derogable right”6.
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As recognized in the case “Velásquez Rodríguez Vs. Honduras”. Inter-American Court of Human Rights. 3 Méndez, Juan E. “Derecho a la Verdad frente a las graves violaciones a los derechos humanos”. 4 Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy. “Civil and political rights, including the questions of independence of the judiciary, administration of justice, impunity”, United Nations, ECOSOC, Commission on Human Rights. E/CN.4/2006/52. 5 Resolutions of UN General Assembly: 58/118, 57/105 and 57/161, and resolutions of the UN Security Council: 1468 (2003), 1470 (2003) and 1606 (2005). 6 Study on the Right to the Truth. Report of the Office of the United Nations High Commissioner for Human Rights. 8 de Febrero de 2006. E/CN.4/2006/91.
Given its close relationship with other non-derogable rights related to crimes against humanity, the Right to the Truth should be treated as an imprescriptible right. The States have the duty to provide judicial and extra judicial mechanisms to implement the Right to the Truth. In this sense, Juan E. Méndez states that, in relation to the most serious crimes, the States have a quadruple duty: the duty to investigate and disclose the events that are proven by reliable means (the truth), the duty to prosecute and punish the perpetrators (the justice), the duty to provide a remedy for damage to a person or property (the remedy), and the duty to remove from security forces those who are proven to have committed, ordered, or consented to the illegal acts7. Moreover, said duties are not only associated to the legal framework of a state, but also such duties relate to ethics and morality, since apart from constituting a right, the Right to the Truth is the only way to restore the victims’ dignity. In other words, the Right to the Truth, as to crimes against humanity, restores the dignity of the whole international community. In general, the Right to the Truth has been claimed by the victims and the victims’ families, but nowadays other persons, who in previous years were not allowed to file a complaint related to the Right to the Truth, are entitled do so. In fact, any person, group of persons, or any non-governmental organization having a legitimate interest in the case may appear before a criminal court and claim said right. The criterion has been widened due to the fact that gross human rights violations are considered to be actions against public policy, thus affecting the whole society. Therefore, any member of society is entitled to bring an action when a human right is denied. Generally, the Right to the Truth may be deemed to be collective when it is identified with the right of societies to remember8. To put it in other words, the whole society is interested in knowing the truth of the events, and the identity of perpetrators who are criminally liable, because a legallyprotected interest affecting the whole society has been violated. The commision of crimes against humanity violates collective rights, because of the relationship between the seriousness of the criminal act and society’s interest in truth and justice. 3. The Right to the Truth in Practice
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Idem. An example of the association with the right to remember is a statement made by Peru’s Constitutional Court (Tribunal Constitucional de Perú), Case 2488-2002- HC/TC 18/3/2004: “The Nation has the right to know the truth about unfair and painful events caused violence exercised by the state, or not by the state in different manners… the violation of the Right to the Truth is a matter affecting not only the victims and their families, but the whole Peruvian community”. 8
In order to punish persons committing acts of genocide, which is a duty of the state related to public policy, the most common mechanisms used by perpetrators to relieve them from responsibility must be avoided or excluded. This idea is already set forth in Nürnberg principles number 3 and 4, in accordance with the formulation of the Nürnberg principles prepared by the International Law Commission in 1950. As it has already been mentioned earlier in this lecture, the Right to the Truth is an autonomous right, closely related to other rights, such as the right to have access to information, the right to identity, and the right to justice. For the purpose of this lecture, we will explain how the Right to the Truth and the right to justice are closely related. Truth is essential to find those guilty and to provide a remedy to the victim, but truth cannot be found if the victim has no right to justice. That is how both rights are connected. The right to justice is society’s right to have an effective means at its disposal. That is, it is the right of any member of society to appear before an impartial, independent court, established pursuant to law, in order to have it enforce its rights. Furthermore, said court must guarantee that those found guilty be tried and punished in accordance with due process of law, and that an appropriate remedy be provided to the victim. Likewise, the right to justice ensures knowledge of the events occurred by the intervention of the courts, which are entrusted with the investigation, assessment of evidence, and prosecution of the acussed persons. International jurisprudence is clear in establishing that it is the duty of the States to conduct investigations on human rights violations, and that mechanisms that may guarantee perpetrators’ impunity are inadmissible. Even though international jurisprudence has been originally developed in relation to enforced disappearance of persons only, it has been gradually extended to cover gross human rights violations in general. Under article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide, the Contracting Parties confirm that genocide is a crime which they undertake to prevent and to punish. Under articles 1 and 25 of the American Convention on Human Rights, the States have the duty to investigate any violation of human rights recognized by the Convention9. The Inter-American Court of Human Rights, in its judgment of September 15, 2005 related to the case of the “Maripirán Massacre”, extended the obligation of the states mentioned in the previous paragraph, as the Court ruled that the State has the obligation to remove all factual and legal obstacles that might hinder extensive judicial elucidation of the violations [of the American Convention.]
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Report of the Inter-American Commission on Human Rights dated December 22, 1999, “Ellacuria, S. J. Ignacio”.
By virtue of the states’ obligation to investigate, any such laws as amnesty laws, rules governing limitation periods for legal actions, and dispositions relieving an accused from its responsibilty are inadmissible in the event of gross human rights violations; and national legislation may not contravene the obligation to investigate. Therefore, the Right to the Truth is an effective mechanism to have acces to courts whenever a gross violation of a human right has been committed by perpetrators who cannot be tried for political reasons, related to the permanent state of impunity10. 3. A. The Argentine Precedent The Argentine precedent and the process of transition related to combatting impunity, is paradigmatic. The process included: (a) the abrogation of Law 22,924 of September 1983, a law of self-amnesty which prevented the perpetrators of gross human rights violations from being brought to trial. Said law was abrogated by Law Law 23,040, on 29 December 1983. (b) the establishment of the National Commission on Enforced Disspearance of Persons (CONADEP, as per the acronym in Spanish), and a truth commission [SIC]. (c) the conviction by civil courts of top military staff of the de facto government. Subsequently, two amnesty laws- Law 23,492 of November 1986, known as Full Stop Law [Ley de Punto Final], and Law 23,521 of June 1987, known as Due Obedience Law [Ley de Obediencia Debida]- restricted the jurisdiction of criminal prosecution, as did pardons granted on 7 October 1989, and on 30
December 1990. As a
consequence of the above-mentioned laws and pardons, the members of the dictatorship who had been sentenced, as well as many others who were being prosecuted for equally serious crimes, were allowed to go free11. In view of the obstacles to justice implied by the pardons, victims’ families, victims, and human rights organizations joined together under the common desire to combat impunity and appealed to international organizations, which declared the amnesties and pardons to be incompatible with international human rights treaties and requested successive Argentine governments to annul them, since they prevented clarification of the facts and the identification of those responsible. This led to the adoption of a series of national measures which opened the way to legal proceedings, generally known as “trials for the truth”, in which the aim is not to impose a criminal sanction, although they were conducted in criminal jurisdictions12.
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Resolution 2005/66. United Nations Commission on Human Rights. It determines the importance of respecting and ensuring the Right to the Truth in order to put an end to impunity, and promote and protect human rights. 11 Nino, Carlos S. “Juicio al Mal Absoluto: Los Fundamentos y la Historia del Juicio a las Juntas del Proceso”. EMECÉ Editores. 1997. Buenos Aires. Argentina. Chapter 2. 12 Argentine National Chamber, case 761. March 4, 1996.
There followed well-known events, that is, the abrogation of “Punto Final” and “Due Obedience” Acts. These laws ceased to apply only in the future, but on 3 September 2003, Act No. 25779 declared them null and void. Subsequently, on 14 June 2005, the Supreme Court confirmed that they were null and void and unconstitutional, on the grounds of a breach of international treaties that recognize no time limitation for crimes against humanity and confer on the obligation to try this type of crime the status of a rule of jus cogens13. 3. B. The Trial for the Truth of the Armenian Genocide The attempt to put an end to impunity, in the case of the Armenian genocide committed by the Turkish State, was unsuccessful. In 1914, the Young Turks, a political organization which took power in the Ottoman Empire, ordered the deportation of the whole Armenian population. As a result, 1,500,000 Armenian people were obliged to cross the desert, where many of them were killed, and others died after having being raped, or having suffered indescribable humiliations. In 1923, the Treaty of Laussane set forth the amnesty for these crimes. Since then, the events have intentionally been hidden as part of a deliberate and systematic policy carried out by the successive Turkish governments, which consisted in denying the events and distorting the true story according to which they appear as perpetrators of the Armenian population extermination. Under these circumstances, thousands of miles away, an Argentine citizen, descendant of Armenian genocide survivors, has availed himself of the innovations that arouse in the legal field, both at the national and international level, to claim for justice and for the truth. Among the innovations we can mention the laws applied in the Argentine precedent (the trials for the truth, which are not intended for the criminal sanction), and the principle of universal jurisdiction. Thus, Gregorio Hirabedian filed the complaint with the National Criminal and Correctional Court of Appeals. This Court dismissed the complaint on the grounds that “… the investigation required in the complaint [was] outside the scope of the investigations for the truth carried out by [the] Court sitting in plenary…”, (it was dismissed because the investigation required was not prescribed for by Law 23,049.) Afterwards, the Court held that a criminal court of first instance had jurisdiction in the case. Therefore, the case was allocated by lottery to the National Criminal and Correctional Court No 5, Office No 10.
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Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy. “Civil and political rights, including the questions of independence of the judiciary, administration of justice, impunity”, United Nations, ECOSOC, Commission on Human Rights. E/CN.4/2006/52.
Once the prosecutor was notified, pursuant to section 180 of the National Criminal Procedural Code [Código Procesal Penal de la Nación], the prosecutor requested the judge to dismiss the complaint on the grounds that it was impossible to investigate the crime of genocide within the jurisdiction of the Argentine Republic. The judge of the criminal court of first instance dismissed the complaint based on procedural matters. However, his decision was appealed by the plaintiff. Thus, Chamber II of the National Criminal and Correctional Court of Appeals intervened in the case again, and revoked the decision made by the judge of the first instance by stating that Mr Hairabedian’s claim had not been considered, since no criminal sanction was claimed, but rather an investigation of the crimes reported, in the context of the so-called “Trials for the Truth”. The Court held that “the plaintiff did not file charges against another person, in fact, the plaintiff explained in the complaint that no criminal sanction ws intended. Rather, the plaintiff did demand the investigation and clarification of the crimes in order to know the final fate of relatives and the place where their bodies lie. This is the right of the victim’s families and the whole society to an effective finding of the truth.” Therefore, the Court decided to revoke the judge’s decision. The records of the proceedings were submitted back to the National Criminal and Correctional Court No 5, Office No 10, which was now presided by Mr Norberto M. Oyarbide, judge. He decided: “Buenos Aires, October 23, 2002… in order to consider the plaintiff’s claim, and to avoid the idea that the so-called “Right to the Truth” is a mere statement with no actual influence, I consider that -at least- it is important to attempt to provide a remedy for the plaintiff’s claim. Therefore, I uphold the claim filed by the plaintiff… I hereby resolve:… 1) To dismiss the criminal claim… 2) To request the Government of Turkey, through the Argentine Ministry of Foreign Affairs, International Trade and Worship, by proper means: A) to provide a detailed explanation of the fate of the paternal and maternal family of Gregorio Hairabedian, as stated in pages 22/23, based in Palu (Jarput) and Zaitun (Soulemainy), during the events that took place between 1915 and 1923; B) make available to the person subscribing this instrument, files that the Government may have about those events, of which his family members were victims, either by disappearance, deportation, or extermination. 3) To request the Governments of Great Britain, USA, Germany and the Vatican State to send all the information held on file relating to events that occurred between 1915 and 1923, in Turkey, in the vilayets of Trabzon, Erzurum, Bitlis, Diarberkir, Jarput and Sivas, and relating to any information about the family of the plaintiff. 4) To request the Information Office of the United Nations, to submit a copy of the "Revised and Updated Report on the question of the prevention and punishment of the crime of genocide", prepared by Ben Whitaker, approved by the United Nations at the 38th Session of August 1985,
which bears the identification code E/CN.4/Sub.2/1985/6; and a certified copy of the Proceedings of the 38th Session, Provisional Agenda, item 4. The list of countrys to which rogatory letters were issued has been extended. Afterwards, by the beginning of 2006, ten Armenian institutions were incorporated to the complaint as co-plaintiffs. They are: The General Armenian Charity Union [Unión General Armenia de Beneficencia]; The Administrative Institution of the Armenian Church [Institución Administrativa de la Iglesia Armenia]; The Cultural Armenian Association [Asociación Cultural Armenia]; Argentine-Armenian Chamber of Commerce and Industry [Cámara Argentino Armenia de Industria y Comercio]; Armenian Cultural Union [Unión Cultural Armenia]; General Armenian Union of Physical Culture [Unión General Armenia de Cultura Física]; Civil Armenian Charity Association of South America [Asociación Civil Armenia de Beneficencia de América del Sur]; Union of Marash Armenian [Unión Compatriótica Armenia de Marash]; Tekeyan Association [Asociación Tekeyan]; Union of Armenian Residents of Hadjin [Unión de Residentes Armenios de Hadjín.] Nowadays, the case of the Armenian Genocide is still pending, and a considerable effort is being made to offer documentary evidence of the crime. 4. The Importance of the Right to the Truth- Current Situation and Future Projections Regardless of the fact that the Armenian people may refer to the treaties mentioned in this lecture and to the rules of international law whenever they claim for truth and justice, the political current situation is so harsh that it may be difficult to make progress by resorting to the law. The application of international law as well as the development of international cases depend on political will. Therefore, we should emphasize the importance of creating the conditions for political will to exist, so that the Armenian population and the Armenian diaspora may find justice. We consider that the appointment of Mr Juan Méndez as Special Adviser of the United Nations Office of the Special Adviser on the Prevention of Genocide is a step forward regarding the claims for truth and justice. Likewise, Mr Leandro Despouy, the United Nations Special Rapporteur of the Commission on Human Rights, during the last session of said commission, mentioned the progress made in the development of the case of the Armenian genocide which is being tried by Argentine courts. Academic activities, such as those promoted by the Chair in Armenian Studies, are very important to those of us who need answers to the questions that arise while we are actively involved in the study, the investigation, and the daily activities related to claims for truth and justice. As a result, we consider that despite the existing impunity regarding atrocious crimes ocurring everyday in the world, we should adopt an attitude of commitment to our
history, since understanding the past is essential for the identity of people who seek a better future. Written by Mariela Bondar and Federico Gaitan Hairabedian Luisa Hairabedian Foundation14
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Luisa Hairabedian Foundation aims at continuing the steps taken and/or supported by Mrs. Luisa Hairabedian, as regards impunity for the Armenian genocide, as planned and executed by the Turkish state, and any other genocide that a community may have suffered or may suffer. Likewise, it is the purpose of the Foundation to participate in the fight for the actual exercise and enforcement of Human Rights, among them, Childrens’s Rights, in the context of the defense of the Right to Life and to Dignity, and the promotion of new, fair, and superior coexistence relationships for human beings. Therefore, the Foundation seeks to help eliminate completely the so-called “final solution�, a macabre mechanism used for the elimination of communities who oppose oppression and appropriation, which occur in different manners. To that effect, the Foundation will carry out studies and research of a legal, political, historical, anthropological, cultural, and religious nature, and of any other nature for the purposes described hereabove. For the very same purposes, the Foundation will demand decisions of competent national and international institutions, be them public or private, and will bring the relevant legal actions available in national or international jurisdictions. The Foundation, in accordance with its humanist aim, which is believed to be an actual humanist aim, as opossed to a mere declaration, will govern itself by the principles of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948. The Foundation is also based on the fundamentals of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly on December 9, 1948; the Convention on the Rights of the Child, approved by the UN General Assembly on November 20, 1989; as well as on the remaining supplementary international instruments.