chapter 2 - Stiftung "Erinnerung, Verantwortung und Zukunft"

Agnès Callamard
Fundamental reform of the legal regime governing freedom of expression is therefore an essential precondition
for meaningful efforts to uncover the truth about the past. From this standpoint, it may be argued that
the right to truth derives from the more general right of access to information, contained within the right to
“seek, receive and impart information” which is guaranteed by Article 19 of the Universal Declaration of Human
Rights.
Both legal practice and jurisprudence around the world have increasingly insisted that the truth be made
public. Indeed, the right to “truth” is first and foremost a right to an official statement about what happened,
or “to an authoritative version of events, over and above partisan considerations.” 7
As Yasmin Naqvi argues, “such ‘statements’ by the state need not be in a particular form but could be expressed
aurally, visually, musically, pictorially or through sculpture. This could mean that the right to the
truth could also be, at least partially, satisfied through such actions by the state as erecting monuments dedicated
to victims or works of art or musical compositions that explain what happened.” 8
The right to truth does not preclude the rights of victims to compensation or punishments for perpetrators.
Over the last 20 years, myriad approaches to the right to truth have evolved, that include criminal prosecutions,
reconciliation and amnesties. All have requested freedom of expression and demand that the state to
uncover and publicize the truth.
Limitations to the Right to Truth
In spite of its multiple functions, the right to truth is not absolute; it is limited by the same exceptions that
apply to the right of expression more generally under Article 19 of the International Covenant on Civil and
Political Rights. Framed in general terms, these exceptions allow governments to withhold certain types of
information from the public. For example, the right to freedom of expression may be restricted in order to
protect the rights of others, or public order, if it is “necessary in a democratic society” and is done by law.
The European Court has established a strict three-part test for the restriction of freedom of expression. For
a restriction to be legitimate, it must meet all three parts of the test: a restriction must indeed pursue the
legitimate aim that it claims to pursue; the restriction must be imposed in a democratic framework (i.e., either
by parliament or pursuant to powers granted by parliament); and the restriction must be “necessary in
a democratic society.” The word “necessary” must be taken quite literally and means that a restriction must
not be merely “useful” or “reasonable.” States maintain discretion over the exact measures, but above all
their restrictions must be “necessary in a democratic society.” There should be a clear presumption in favor
of the right to information about serious human rights violations. The onus falls on the authorities to justify a
refusal to make information available upon request.
International law imposes one clear positive duty on states: as stated in Article 20(2) of the UN Covenant on
Civil and Political Rights: “Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.” 9 Yet there are vastly different regional or national
approaches to hate speech. At one end of the spectrum, the US approach protects hate speech unless the
speech actually incites violence or is likely to give rise to imminent violence. It is a stringent standard which
means that even speech advocating violence and filled with racial insults is protected if there is no evidence
that physical violence is likely to occur. At the other hand of the spectrum are tight restrictions on hate speech,
7 José Zalaquett, quoted in ARTICLE 19: Moments of Truth in Sierra Leone (London, August 2000): 10-11, accessed on Oct. 29, 2009 from http://www.
article19.org/pdfs/publications/sierra-leone-moments-of-truth.pdf.
8 Yasmin Naqvi, “The Right to the Truth in International Law: Fact or Fiction?” in International Review of the Red Cross 88 (June 2006): 862 ff.
9 United Nations, International Covenant on Civil and Political Rights, accessed on Jan. 31, 2010 from http://www.hrweb.org/legal/cpr.html.
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Stiftung EVZ
HUMAN RIGHTS AND HISTORY: A CHALLENGE FOR EDUCATION