O trabalho a seguir se propõe a analisar o fundamento teórico do direito à verdade, sua origem histórica e implicações. Para tanto parte da ideia arendtiana de que a verdade factual muitas vezes está em oposição à política. Assim, a mentira e o segredo são instrumentos eficazes para manutenção e sobrevivência do autoritarismo estatal. Portanto, estabelecer a verdade se torna elemento essencial de um estado democrático de direito. O direito à verdade, nesse sentido é reconhecido como um direito de toda a coletividade e se relaciona à discussão sobre o acesso à informação e a responsabilização de agentes do estado. Existe ainda uma segunda faceta do direito à verdade, que se encontra na origem da construção do conceito e consiste no direito individual em saber sobre as circunstâncias do desaparecimento de pessoas. Além do reconhecimento do direito à verdade, outro problema central dos direitos humanos e que não pode ser preterido é a sua efetivação. Com efeito, a enunciação de direitos, por si só, não basta. A partir dessa perspectiva, cumpre observar como o direito à verdade pode ser implementado. Dentre os diversos mecanismos disponíveis, as comissões da verdade chamam especial atenção. Nesse sentido, a Comissão de Acolhimento Verdade e Reconciliação (CAVR) de Timor-Leste representa um marco paradigmático para o direito à verdade. Para compreender o funcionamento e os resultados da comissão é necessário considerar as características gerais de uma comissão da verdade, bem como o contexto social e cultural de Timor-Leste. As comissões da verdade, como meios alternativos de solução de conflitos inserem-se em um contexto de justiça restaurativa, cujo objetivo primordial é o encerramento do ciclo de violência. Em razão do poder reconciliador que possuem, inúmeras comissões instalaram-se ao redor do globo, com a onda de democratizações, sobretudo a partir dos anos 90. Embora seja possível identificar alguns elementos comuns às comissões da verdade, cada um delas conta com peculiaridades próprias. Com efeito, a diversidade de contextos nos quais se desenvolvem os mecanismos de justiça de transição, se traduzem também na diversidade do trabalho de tais instituições. Portanto, para que se compreendam os trabalhos e desafios enfrentados pela CAVR, é preciso apreender o contexto da sociedade timorense. Timor-Leste caracteriza-se por ser uma sociedade segmentada, em que a justiça comunitária ainda é o principal meio de solução de conflitos. Outro importante fator é a tradição da linguagem oral, que valoriza a memória para o estabelecimento de regras sociais e de justiça. A CAVR, ao incorporar esses elementos, logrou êxito na condução da reconciliação no nível das comunidades e contribuiu igualmente para a construção da identidade nacional. A documentação produzida serviu ainda como importante referência para que se trouxessem à luz os abusos cometidos. Nesse sentido, teve uma importante função educativa ao esclarecer as relações estabelecidas entre os indivíduos e o estado durante o regime autoritário. Além disso, as recomendações produzidas pela CAVR revelam-se ainda atuais, servindo como referência para o desenvolvimento de instituições e políticas nacionais em Timor-Leste. / The following study analyzes the theoretical basis of the right to truth, its historical origin and implications. It´s starting point is Hannah Arendt´s idea that factual truth is often in opposition to politics. Thus, the recourse to lies and the secrecy are effective tools for the maintenance and survival of state authoritarianism. Therefore, establishing the truth becomes a crucial element of democratic states based on the rule of law. The right to the truth in this regard is recognized as a right of the whole community and relates to the discussion on access to information and accountability of state agents. There is a second dimension of the right to truth, which lies within the original construction of the concept and translates into the individual right to know about the circumstances of the disappearance of persons. In addition to the recognition of the right to truth, another central issue of human rights - and that can not disregarded is its effectiveness. The sole announcement of the recognition of rights is not enough. From this perspective, the way in which the right to truth can be implemented should be noted. Among the various available mechanisms, truth commissions draw special attention. Accordingly, the Commission for Reception Truth and Reconciliation (CAVR) in Timor-Leste offers a paradigmatic framework for the right to truth. In order to understand how it operated and the outputs of the commission, it is necessary to consider the general characteristics of a truth commissions, as well as the social and cultural context of Timor-Leste. As alternative means of dispute resolution, truth commissions fall into the broader context of restorative justice, for which the primary goal is the end of the cycle of violence . Because of the reconciling power they have, many commissions have been set up around the globe, especially after the wave of democratizations in the 90s. Although it is possible to identify some common elements, each truth commission has its own peculiarities. The diversity of contexts in which transitional justice mechanisms develop, implicate on the diversity of the work of such institutions. Therefore, in order to understand the work and challenges faced by the CAVR, it is necessary to understand the context of East Timorese society. Timor-Leste is a segmented society, where community justice is still the primary means of conflict resolution. Another important factor is the tradition of oral language, which values the memory in order to establish of social rules and justice. By incorporating such elements, the CAVR was successful in driving the reconciliation process at the community level and at the same time contributed to the construction of national identity. The documents the CAVR produced also served as an important reference in order to shred light into the human rights violations. In this sense, it had an important educational role by clarifying the relations between individuals and the state during the authoritarian regime. In addition, the recommendations produced by the CAVR turn out to be still accurate, acting as a reference for the development of national institutions and policies in Timor-Leste.

Magister Legum - LLM / Since the 1980's, many dictatorships around the world have been replaced by new democracies. These old dictatorships were notorious for their human rights abuses. Many people were killed and tortured; and many others were disappeared. When the new governments came into power, they had to confront these injustices that were perpetrated under the predecessor regime. This was necessary to create a culture of human rights; promote a respect for the law and access to justice. Many confronted these injustices in different ways, some granted amnesty, some prosecuted and others instituted truth commissions. This research paper focuses on truth commissions. The research focuses particularly on the study of the South African Truth Commission. The mandate of the South African Truth Commission is analysed and the investigation into whether the commission served the purpose for which it had been established is discussed. / South Africa

Magister Legum - LLM / This thesis advocates the expansion of the field of transitional justice to address corruption in African states emerging from conflict or authoritarianism. There is a close connection between corruption and conflict or repressive regimes in Africa. A good example is the Arab Spring of 2011, where citizens of Tunisia, Egypt and Libya protested against endemic corruption, leading to removal of despotic leaders from power. Dictators or conflicts tend to leave African states in situations where their coffers have been emptied corruptly and their citizens subjected to serious physical violence. What is more, corrupt and oppressive leaders use their ill-gotten assets to escape liability for their crimes. The evident link between the two forms of abuse makes it desirable to address them simultaneously when the dictatorship or conflict ends. Many African countries have deployed transitional justice mechanisms, such as criminal prosecutions, truth commissions, institutional reforms and reparations to address violations of civil and political rights. However, they have neglected corruption and other violations of social and economic rights, notwithstanding their crucial role in the violent past. Many countries still are haunted by the unresolved legacies of corruption and other socio-economic injustices. Recently, scholars and practitioners in the fields of transitional justice and anti-corruption have started to call for corruption and other socio-economic issues to be accommodated within transitional justice programmes. Problems encountered with the expansion of transitional justice mechanisms have not been worked out yet at the level of theory, policy and practice. This thesis subscribes to transformative justice theory as the most viable perspective from which to tackle corruption in transitional societies in Africa. Transformative justice theory is gaining increasing attention in the field of transitional justice, and it has been incorporated in the recent African Union Transitional Justice Policy. It champions locally driven mechanisms which reflect the needs of the victims and local communities, and which pursue socio-economic justice and transformation. The thesis argues that the current transitional justice mechanisms have the potential to become transformative and it will seek to answer how best each of these mechanisms may be implemented to address corruption. It is hoped that this thesis will assist in answering critical questions regarding the proximate relationship between corruption and violence, and in offering guidelines towards the total integration of an anti-corruption agenda into the field of transitional justice in Africa.

No description available.

In recent decades, the truth commission has become a mechanism used by states to address historical injustices. However, truth commissions are rarely used in established democracies, where the commission of inquiry model is favoured. I argue that established democracies may be more amenable to addressing historical injustices that continue to divide their populations if they see the truth commission mechanism not as a unique mechanism particular to the transitional justice setting, but as a specialized form of a familiar mechanism, the commission of inquiry. In this framework, truth commissions are distinguished from other commissions of inquiry by their symbolic acknowledgement of historical injustices, and their explicit “social function” to educate the public about those injustices in order to prevent their recurrence. Given that Canada has established a Truth and Reconciliation Commission (TRC) on the Indian Residential Schools legacy, I consider the TRC’s mandate, structure and ability to fulfill its social function, particularly the daunting challenge of engaging the non-indigenous public in its work. I also provide a legal history of a landmark Canadian public inquiry, the Mackenzie Valley Pipeline Inquiry, run by Tom Berger. As his Inquiry demonstrated, with visionary leadership and an effective process, a public inquiry can be a pedagogical tool that promotes social accountability for historical injustices. Conceiving of the truth commission as a form of public inquiry provides a way to consider the transitional justice literature on truth commissions internationally along with the experiences of domestic commissions of inquiry to assemble strategies that may assist the current TRC in its journey.

In recent decades, the truth commission has become a mechanism used by states to address historical injustices. However, truth commissions are rarely used in established democracies, where the commission of inquiry model is favoured. I argue that established democracies may be more amenable to addressing historical injustices that continue to divide their populations if they see the truth commission mechanism not as a unique mechanism particular to the transitional justice setting, but as a specialized form of a familiar mechanism, the commission of inquiry. In this framework, truth commissions are distinguished from other commissions of inquiry by their symbolic acknowledgement of historical injustices, and their explicit “social function” to educate the public about those injustices in order to prevent their recurrence. Given that Canada has established a Truth and Reconciliation Commission (TRC) on the Indian Residential Schools legacy, I consider the TRC’s mandate, structure and ability to fulfill its social function, particularly the daunting challenge of engaging the non-indigenous public in its work. I also provide a legal history of a landmark Canadian public inquiry, the Mackenzie Valley Pipeline Inquiry, run by Tom Berger. As his Inquiry demonstrated, with visionary leadership and an effective process, a public inquiry can be a pedagogical tool that promotes social accountability for historical injustices. Conceiving of the truth commission as a form of public inquiry provides a way to consider the transitional justice literature on truth commissions internationally along with the experiences of domestic commissions of inquiry to assemble strategies that may assist the current TRC in its journey.

This thesis is a qualitative analysis of the international legal response to rape as war crime in the former Yugoslavia. Through the examination of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the case law it has generated, this thesis addresses the question will the androcentric characteristics of law found in domestic rape cases be replicated at the international level? More specifically this thesis undertakes an examination which questions will international law be able to adequately amplify and listen to women voices, or will the women’s words be silenced by the rule of law? The following research is loosely informed by Carol Smart’s (1989) sociology of law theory combined with Liz Kelly’s (1988) notions of coping, resisting, and surviving. The purpose of using Kelly’s theory is to go beyond viewing women as inevitable victims of sexual assault. The methodological approach is both qualitative and inductive. It draws on data from the ICTY structure, Statute, Rules of Procedures and Evidence, case law and transcripts and women’s stories presented outside the legal realm. The analysis reveals that while written law (including the interpretation and application of the law) is somewhat aware of the experiences of women, it falls short of adequately responding to the needs of women. A detailed look at the women’s stories of war revealed diverse experiences not captured in the legal realm. The women’s stories spoke of concerns beyond sexual assault and other crimes identified by the ICTY Statute. This thesis also introduces alternatives or complimentary approaches to law when dealing with war crimes. These alternatives include women’s local groups and truth commissions. This thesis also identifies the criminological relevance of studying war crimes (as defined by international law) and crimes of war and marks an important step in understanding rape and war from a criminological perspective. / February 2005

This thesis is a qualitative analysis of the international legal response to rape as war crime in the former Yugoslavia. Through the examination of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the case law it has generated, this thesis addresses the question will the androcentric characteristics of law found in domestic rape cases be replicated at the international level? More specifically this thesis undertakes an examination which questions will international law be able to adequately amplify and listen to women voices, or will the women’s words be silenced by the rule of law? The following research is loosely informed by Carol Smart’s (1989) sociology of law theory combined with Liz Kelly’s (1988) notions of coping, resisting, and surviving. The purpose of using Kelly’s theory is to go beyond viewing women as inevitable victims of sexual assault. The methodological approach is both qualitative and inductive. It draws on data from the ICTY structure, Statute, Rules of Procedures and Evidence, case law and transcripts and women’s stories presented outside the legal realm. The analysis reveals that while written law (including the interpretation and application of the law) is somewhat aware of the experiences of women, it falls short of adequately responding to the needs of women. A detailed look at the women’s stories of war revealed diverse experiences not captured in the legal realm. The women’s stories spoke of concerns beyond sexual assault and other crimes identified by the ICTY Statute. This thesis also introduces alternatives or complimentary approaches to law when dealing with war crimes. These alternatives include women’s local groups and truth commissions. This thesis also identifies the criminological relevance of studying war crimes (as defined by international law) and crimes of war and marks an important step in understanding rape and war from a criminological perspective.

This thesis is a qualitative analysis of the international legal response to rape as war crime in the former Yugoslavia. Through the examination of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the case law it has generated, this thesis addresses the question will the androcentric characteristics of law found in domestic rape cases be replicated at the international level? More specifically this thesis undertakes an examination which questions will international law be able to adequately amplify and listen to women voices, or will the women’s words be silenced by the rule of law? The following research is loosely informed by Carol Smart’s (1989) sociology of law theory combined with Liz Kelly’s (1988) notions of coping, resisting, and surviving. The purpose of using Kelly’s theory is to go beyond viewing women as inevitable victims of sexual assault. The methodological approach is both qualitative and inductive. It draws on data from the ICTY structure, Statute, Rules of Procedures and Evidence, case law and transcripts and women’s stories presented outside the legal realm. The analysis reveals that while written law (including the interpretation and application of the law) is somewhat aware of the experiences of women, it falls short of adequately responding to the needs of women. A detailed look at the women’s stories of war revealed diverse experiences not captured in the legal realm. The women’s stories spoke of concerns beyond sexual assault and other crimes identified by the ICTY Statute. This thesis also introduces alternatives or complimentary approaches to law when dealing with war crimes. These alternatives include women’s local groups and truth commissions. This thesis also identifies the criminological relevance of studying war crimes (as defined by international law) and crimes of war and marks an important step in understanding rape and war from a criminological perspective.

Univ., Diss.--Kiel, 2005.