Remembering Past Atrocities: the Duty of Memory in International Law

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Remembering Past Atrocities: the Duty of Memory in International Law Remembering Past Atrocities: The Duty of Memory in International Law Maria Chiara Campisi Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, 11 June 2015 European University Institute Department of Law Remembering Past Atrocities: The Duty of Memory in International Law Maria Chiara Campisi Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Prof. Ruth Rubio Marin, EUI (Supervisor) Prof. Francesco Francioni, EUI Prof. Paolo Benvenuti, Universitá degli Studi Roma Tre Judge Antônio Augusto Cançado Trindade, International Court of Justice © Maria Chiara Campisi, 2015 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author This thesis has been submitted for language correction. Thesis Summary From serious violations of human rights, international law derives a set of consequences that fall to the responsible states. These consequences take the form of secondary obligations arising from primary rules and standards, which guide governments in the process of coming to terms with a violent past. This thesis argues that some of these legal constraints, because of the manner in which they have been developed in practice, may affect the way wrongdoing states choose to deal with their past. As a result, they influence the processes of memory-making within societies. Through the legal analysis of international norms and their application to, and implementation in, situations of gross and systematic human rights abuses, this research develops the concept of a duty of memory under international law. In so doing, it offers a critical assessment of the ways international law may affect official representations of the past in the present, playing the role of vector of memory. i ii Acknowledgments This thesis is the result of a long journey which lead me through various landscapes, places, cultures, institutions, people, and learning experiences. This journey has been intense, meaningful, and rich; yet, sometimes tough, windy, and full of hindrances, and side roads. Throughout this journey, however, I have been fortunate to receive the constant intellectual and emotional support and encouragement by a number of outstanding individuals, to whom my deepest gratitude goes. First of all, I would like to express my sincere gratitude to my supervisor, Professor Ruth Rubio Marín, for her enthusiastic mentoring, the constant encouragement, and the rigorous intellectual guidance during this journey. Thank you for believing in this project, and for helping me to see it through till the end. Thank you for all the lessons that I have learnt from you, both at the professional and personal level. I would also like to thank Professor Francesco Francioni, for his generosity in sharing his vast knowledge and experience, and for the great deal of inspiration and wise advice that I have received from our conversations since the very beginning of this project. I am especially indebted to Professor Paolo Benvenuti, who has been a mentor to me throughout all these years. I owe him much for initiating me into the study of International Law, and for transmitting his passion for research to me. I am immensely grateful for his generosity, for having trusted my abilities since the outset of my studies, and for his unfailing, invaluable support along the way. My sincere thanks also go to Judge Antônio Augusto Cançado Trindade, who graciously accepted to read and comment this work, as well as to sit on the jury for my oral defence. It has been a real honour for me. It has been a privilege for me to complete my doctoral studies in the rich and stimulating environment of the European University Institute. My research greatly benefited from the ongoing intellectual engagement and exchanges with professors, friends, and colleagues, both inside and outside the Law Department. I would like to acknowledge, in particular, Professor Carlos Closa Montero, Professor Dirk Moses, and the bright scholars from the EUI Working Groups on International Law, on Human Rights, and the Memory Reading Group. I am particularly indebted to my academic writing teachers and friends, Nicola Hargreaves and Nicola Owtram, and to the members of the “Talkative Group”. iii Outside the EUI, I was fortunate to spend some of my time as a PhD researcher at the Inter-American Court of Human Rights. There, I wish to thank the great team of lawyers whom I had the privilege to work with, in particular Pablo Saavedra Alessandri, Gabriela Pacheco, Auxiliadora Solano, Jorge Calderon Gamboa, and Olger Ignacio González, as well as the group of pasantes y visitantes de la Corte. My gratitude also goes to Professor Klaus Neumann, Dan Anderson, and all the participants of the 2012 Emerging Scholars Workshop on Historical Memory and Justice, held at the Swinburne University in Melbourne, for their thorough insights, comments, and feedback on my ideas. In Florence, I was lucky enough to find a group of amazing friends that very soon became “family”: Mateja, Emilie, Lisa, Neja, Gonçalo, Fernando, Tamara, Mislav, Dorothy, Jorge, Teimur, and Maia. I thank you all for this journey together and for making it great. Thank you also to Alice, Sandra, Dario, Benedetta, Laura, Janine, Susanna, Antonella, Ferdinand and all the wonderful persons whom I have met on the way. This thesis could not have come to light without the unconditional support and love of my family. To my dad, my mum, my best friends since forever, Edmondo and Masetta. You have always been my safe harbour and shelter. To you, I owe the person I am and the desire to become a better one, and the drive to make a difference. Last, but by no means least, to Mauro. In nessuna lingua le parole potrebbero esprimere la mia gratitudine per tutto l’amore incondizionato, la fiducia, la pazienza infinita, l’assidua presenza e sostegno durante tutti questi anni. A te, e alla mia famiglia, dedico questa tesi. iv List of Abbreviations ACHPR - African Charter on Human and Peoples' Rights ACHR - American Convention on Human Rights ACommHPR - African Commission on Human and Peoples' Rights CAT - Convention Against Torture CEDAW - Convention on the Elimination of All Forms of Discrimination against Women CERD – United Nations Committee on the Elimination of Racial Discrimination CESCR – United Nations Committee on Economic, Social and Cultural Rights CHR – United Nations Commission on Human Rights CoE – Council of Europe ECHR - European Convention for the Protection of Human Rights and Fundamental Freedoms ECommHR – European Commission of Human Rights ECtHR - European Court of Human Rights ESC - United Nations Economic and Social Council EU – European Union HRC – Human Rights Committee HRCBiH - Human Rights Chamber for Bosnia and Herzegovina HRCouncil – United Nations Human Rights Council IACommHR – Inter-American Commission on Human Rights IACtHR – Inter-American Court of Human Rights ICA - International Council on Archives ICC - International Criminal Court ICCPR - International Covenant on Civil and Political Rights ICESCR - International Covenant on Economic, Social and Cultural Rights ICJ – International Court of Justice CRC – International Convention on the Rights of the Child ICRC – International Committee of the Red Cross ICTJ – International Center for Transitional Justice ILA - International Law Association ILC - International Law Commission v OAS – Organization of American States PACE - Parliamentary Assembly of the Council of Europe PCIJ – Permanent Court of International Justice UDHR - Universal Declaration of Human Rights UN DoPA – United Nations Department of Political Affair VCLT - Vienna Convention on the Law of Treaties WG EID – United Nations Working Group on Enforced and Involuntary Disappearances vi Table of Contents List of Abbreviations v Introduction 1 The Duty of Memory 1 The Demand for Memory and the Relevance of this Research 2 Approach and Methodology 8 Synopsis 10 Chapter I On Memory 15 Introduction 15 1. Identifying Differentiating Markers 16 1.1 The Multiplicity of Memory. Defining the Concept 16 1.2 Collective memory 20 1.2.1 Critiques on Collective Memory 21 1.2.1.1 Collective v. Individual memories 21 1.2.1.2 Collective Memory and the Unitary Past 23 1.3 Memory and Identity 23 1.4 The Presentist Approach 25 2. Interdisciplinarity of Memory 32 2.1 Memory and Law 32 2.2 Memory and Transitional Justice 38 Concluding remarks 44 Chapter II The Duty to Ascertain the Truth 47 Introduction 47 1. Memory and the Duty to Investigate 48 2. The Obligation to Investigate Gross Human Rights Violations under Human Rights Law 51 2.1 Legal Foundation 51 2.1.1 “Ensure and protect” clause 52 2.1.2 Right to an effective remedy 58 2.1.3 Right to truth 63 2.1.4 Right to reparation 69 2.1.5 Rationalizing the duty to investigate 72 2.2 Standards 74 vii 3. Implementing the Duty to Ascertain the Truth - Modalities for Investigations 79 3.1 Judicial investigations 80 3.2 Truth Commissions 86 Concluding remarks 90 Chapter III The Duty to Disclose 95 Introduction 95 1. Memory and the Duty to Disclose Information 96 2. The legal basis to the Duty to Disclose: The Right to Access to Information 99 2.1 Legal Foundation 99 2.1.1 Beneficiaries and Rationales of the Right to Access to Information. Different Conceptualizations. 100 3. Inferring a State Duty to Disclose from the Public Right to Access to Information?: The State of the Art 104 3.1 The Duty to Disclose in the case law 105 3.1.1 Assessing the case law 110 3.2 The Duty to Disclose in Soft Law 111 4. Standards and Principles of the Duty to Disclose 114 4.1 The Principle of maximum disclosure 114 4.2 Limits and exceptions 116 4.3 Principle of public interest override 116 5.
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