crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
concerns of victims and the alleged abuser’s right to due process and non-discrimination, and operates
publicly and in accordance with international human rights standards. 28
3. Obligations of states
Any action by states towards combating impunity, restoring the rule of law and promoting
reconciliation can only be done by a multidimensional and integrated approach which addresses the
past, the present and the future. To this end, the United Nations has identified three core rights which
are fundamental to these aims: the right to know, the right to justice and the right to reparations and
non-recurrence. 29 Whilst these principles were initially attached to individual victims, they clearly
foster processes which address broader societal concerns. These various mechanisms – in differing
combinations depending on the national needs of each state – are designed to facilitate collective efforts
to address the legacy of past, large scale abuses, emphasise accountability, attain a measure of justice,
and foster reconciliation.
3.1. The past: the right to know
The inalienable collective right of every people to know the truth concerning “past events concerning
the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or
systematic violations; to the perpetration of those crimes”, is fundamental to preventing revisionism or
denial, and facilitating non-recurrence of human rights abuses. 30 The duty to remember runs in tandem
with the right to know. There is a duty to preserve collective knowledge of the history of oppression
which forms part of a people’s heritage and the communal memory of this past from extinction. 31 The
right to truth also has an individual dimension. Victims and their families have an imprescriptible right
to know the circumstances of the violation and the fate of the victim and location of their bodies in case
of death or disappearance. 32
Two primary vehicles are enunciated and elaborated to achieve to realise this collective and
individual right: commissions of inquiry (truth commissions); and preservation and access to archives.
From Africa to Europe, South America to Asia over the last two decades, commissions of inquiry have
been established to address past human rights abuses. 33 Experience has shown that various factors are
necessary to maximise the effectiveness of this mechanism to realise the collective and individual right
to truth. The commission’s role should extend beyond fact-finding to encompass recommendations for
legislative reform and other modes of combating impunity and fostering reconciliation. 34 However, it
does not replace civil, administrative or criminal courts especially in establishing individual criminal
responsibility. Nonetheless, it must necessarily protect the rights of persons implicated in the abuses;
and guarantee the dignity and safety of victims and witnesses. 35
The commission’s terms of reference and composition must be defined following broad public
consultation, especially with victims and survivors. 36 The independence, impartiality and competence
of the commission must be ensured by: guaranteeing the competence, expertise and independence of
its members; granting necessary immunities and privileges for the members against civil or criminal
proceedings; providing of adequate resources; and ensuring adequate representation of women and
28
2004 Rule of Law Report, UN Doc.S/2004/616, para. 52; and United Nations Office of the High Commissioner for Human Rights, Rule
of Law Tools for Post-Conflict States. Vetting: an operational framework, United Nations, New York–Geneva 2006.
29
See 2005 Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add.1 developed in response to the 1993 Vienna Declaration
and Programme of Action, UN Doc.A/CONF.157/23, Part II, para. 91.
30
2005 Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add.1, Principle 2; and UN Doc.E/CN.4/2004/88, paras. 14–23
and E/CN.4/2005/102, paras. 17–25.
31
2005 Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add.1, Principle 3.
32
Ibid., Principle 4. See Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), 4 November 1950, entered
into force 3 September 1953, ETS 5; 213 UNTS 221, art. 3.
33
2004 Rule of Law Report, UN Doc.S/2004/616, para. 50. See generally United Nations Office of the High Commissioner for Human
Rights, Rule of Law Tools for Post-Conflict States. Truth Commissions, United Nations, New York–Geneva 2006.
34
2005 Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add.1, Principle 12.
35
Ibid., Principles 9 and 10.
36
Ibid., Principle 6.
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