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Chasing Tails: Establishing the Right to Truth, Mourning and Compensation

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Medawatte: Chasing Tails: Establishing the Right to Truth, Mourning and Comp +(,1 2 1/,1( Citation: 46 Cal. W. Int'l L.J. 69 2015-2016 Provided by: Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Aug 3 13:38:30 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0886-3210 Published by CWSL Scholarly Commons, 2016 1 California Western International Law Journal, Vol. 46, No. 2 [2016], Art. 2 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL VOLUME 46 SPRING 2016 NUMBER 2 CHASING TAILS: ESTABLISHING THE RIGHT TO TRUTH, MOURNING AND COMPENSATION DANUSHKA S. MEDAWATTE* Abstract This article scrutinizes the possibility of introducing the right to truth and the right to mourn in Sri Lanka as an integral component of a right to an effective remedy that can be afforded to the family members of the victims of enforced disappearances. The first segment considers the existing internationallegal jurisprudence on the right to truth especially drawnfr'm Latin American jurisdictions where such a right has been introduced in the light of the enforced disappearances. The second section analyzes the possibility of introducing right to mourn as a component of both the right to an * LL.B (Hons) Colombo, LL.M (Harvard), James Souverine Gallo Memorial Scholar 2014/15 (Harvard), Attorney-at-Law (Sri Lanka), Lecturer (Faculty of Law, University of Colombo). I am deeply grateful to Mr. Medhaka Fernando (Final year student of the Faculty of Law, University of Colombo) for the wonderful research assistance provided by him. I further wish to thank the Editorial Team of California Western International Law Journal for their invaluable editorial assistance. 69 https://scholarlycommons.law.cwsl.edu/cwilj/vol46/iss2/2 2 Medawatte: Chasing Tails: Establishing the Right to Truth, Mourning and Comp 70 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL [Vol. 46 effective remedy and the right to truth. The Sri Lankan experience regarding the same has been extensively relied on and certain clarifications are provided herein to raise awareness regarding the right to mourn. This paper seeks to establish the right to mourn as a right that can be exercised in public in accordance with the wishes of the victims. The final segment seeks to identify the mechanisms used in providing compensation to victims of violations in general and reliance is placed on both international and domestic jurisprudence pertaining to payment of compensation. TABLE OF CONTENTS 1. THE RIGHT TO TRUTH...................................70 A. Right to Truth as an Abstract Concept................. 70 B. Scope of the Right to Truth ...................... 73 C Truth and Truth Commissions .................... 78 D. Right to Truth in Law.......................... 87 E. Right to Truth as a Collective Remedy ..... ......... 91 II. THE RIGHT TO MOURN ........................... ....... 93 A. Abstract Conceptualizationof the Right to Mourn......93 B. 'MaaveerarNaal' or the Great Heroes Day .................. 95 C. A Dayfor Mourning the Disappeared...... ......... 97 III. RIGHT TO COMPENSATION ......................... ...... 99 A. Right to Compensation in InternationalLaw.................... 100 B. Right to Compensation in Sri Lanka ........ ........ 103 IV. SUMMARY ............................................ 107 . I. THE RIGHT TO TRUTH A. Right to Truth as an Abstract Concept Over the last few decades, an international debate has been unfolding on the substantive right to truth. While there is an abundance of literature on truth itself, the academics fail to analyze the nature of truth in the light of those who demand the right to know what came of their missing family members. This necessitates an analysis of the scope of truth. This task is made difficult by the absence of an established substantive right or any interpretive aid Published by CWSL Scholarly Commons, 2016 3 California Western International Law Journal, Vol. 46, No. 2 [2016], Art. 2 2016] CHASING TAILS: ESTABLISHING THE RIGHT TO TRUTH 71 regarding the right to truth in any of the major international human rights instruments.' However, an international right to truth has been established in the Preamble and Article 24(2) of the International Convention on the Protection of All Persons from Enforced Disappearances (ICPPED).2 The cumulative effect of those human rights instruments can be interpreted as setting a trend in favor of establishing a substantive, enforceable right to truth.3 This assertion is further supported through recent case law, from various jurisdictions, that seeks to set in motion a trend favorable to establishing right to truth. It is essential however, to test the normative strength of truth. This requires clarity of conceptualization of what is encapsulated in the term. Justice Albie Sachs,4 Thomas M. Antkowiak5 and Jack M. Balkin6 have written on the right to truth and its normative limitations, which this article uses as a baseline. Sachs, who was a former judge of the Constitutional Court of South Africa, stated in "Truth and 1. See, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, June 26, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]; Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1976, 1249 U.N.T.S. 13 [hereinafter CEDAW]; Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]; Universal Declaration of Human Rights, G.A. Res. 217 (III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR]; American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter ACHR], and African Charter on Human and People's Rights, June 27, 1986, 1520 U.N.T.S. 217 [hereinafter ACHPR]. Although none of these Conventions guarantee the right to truth and the right to receive information, the right to an effective remedy has been incorporated. 2. International Convention for the Protection of All Persons from Enforced Disappearance, Dec. 20, 2006, 2716 U.N.T.S. 3 [hereinafter ICPPED]. 3. U.N. Secretary-General, Panel of Experts on Accountability in Sri Lanka, ¶ 272 (Mar. 31, 2011) [hereinafter Darusman Report] http://www.un.org/News/dh/infocus/SriLanka/POEReportFull.pdf last visited Mar. 23, 2016. 4. See generally Albie Sachs, Truth and Reconciliation, 52 SMU L. REV. 1563 (1999). 5. See generally Thomas M. Antkowiak, Note, Truth as Right and Remedy in InternationalHuman Rights Experience, 23 MICH. J. INT'L L. 977 (2001-2002). 6. Jack M. Balkin, The Prohferation of Legal Truth, 26 HARV. J. L. & PUB. POL'Y 5 (2003). https://scholarlycommons.law.cwsl.edu/cwilj/vol46/iss2/2 4 Medawatte: Chasing Tails: Establishing the Right to Truth, Mourning and Comp 72 CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL .[Vol. 46 Reconciliation" that there are four categories of truth: microscopic, logical, experiential, and dialogic truth.7 Balkin, however, is of the view that we are facing a proliferation of truth in the postmodern legal culture.8 Justice Sachs's approach to truth emanates from a sociological perspective. This article places emphasis on the legal perspective of truth, which departs from Balkin's argument against what he refers to as the "proliferation of truth." Balkin's approach is essentially based on the misguided notion that a proliferation negates the validity of truth. However, this is erroneous in that a sifting of "credible" and ''conclusive" truth from that of the proliferation leads to pure legal truth meaning that per se proliferation does not negate legal truth's validity. The argument made in this article is that there are three categories of truth when viewed from a socio-legal perspective: pure legal truth, credible truth and conclusive truth. The four types of truth that Justice Sachs has introduced fall into the larger categories of credible9 and conclusive truth. Antkowiak has expressed the idea that the right to truth can be divided in to two further categories: an individual right applying to the victim and the family member and a general societal right.' 0 The author argues that truth as a collective right and the right to mourn inclusive of preservation of memory should be substantive rights in the Sri Lankan context. These rights are connected with the second tier right to truth that Antkowiak has presented in his piece. Sri Lanka has released reports of several commissions of inquiry pertaining to alleged war crimes, crimes against humanity, and enforced disappearances." , The latest is the Paranagama Report 7. See generally Sachs, supra note 4, at 1571-72. 8. See generally Balkin, supra note 6. 9. See generally Sachs, supra note 4. 10. See generally Antkowiak, supra note 5. 11. There are allegations that the Commissions of Inquiry have not been effective in combatting impunity and providing justice. See generally U.N, Org., REPORT OF THE SECRETARY GENERAL'S PANEL OF EXPERTS ON ACCOUNTABILITY IN SRI LANKA (2011). See also KISHALI PINTO-JAYAWARDENA (EDS), A LEGACY TO REMEMBER; SRI LANKA'S COMMISSIONS OF INQUIRY 1963-2002 A REFERENCE GUIDE TO COMMISSION
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