Human rights prosecutions in Latin America: National courts and the fight against amnesty laws

 
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From the 1970s to the 1990s, countries across Latin America experienced state-sanctioned violence. Today, many victims and their families still seek justice. Since the 1980s, an internationally-renowned team of Argentine forensic anthropologists has traveled the region — from the Southern Cone up to Central America and Mexico – to unearth victims who had been buried in unmarked graves. Many of these victims were “disappeared” by military dictatorships in Chile and Argentina in the 1970s and 1980s. A 2002 article published in Latin American Perspectives titled “Tracking the Origins of a State Terror Network: Operation Condor” offers journalists some historical context on such state-sanctioned violence, including murder and torture. A 2005 article in The American Historical Review, “The Instruction of Great Catastrophe: Truth Commissions, National History, and State Formation in Argentina, Chile, and Guatemala,” also offers key insights.

For decades, government and military officials throughout Latin America were impuned from crimes or human rights violations they committed. But over the past 10 years, a general consensus has emerged that amnesty laws should be abolished and individuals who committed or participated in violent crimes should be held accountable — whether those crimes took place in the 1970s or today, as is the case in Mexico with the government’s fight against drug cartels and in Colombia as the Santos administration negotiates an end to the five decades-long civil war there.

As national courts have moved to prosecute these crimes, a key challenge is trying to organize trials involving sometimes hundreds of defendants and victims. And Latin American courts have been prosecuting their own cases — unlike other areas of the world such as Eastern Europe and Africa, where human rights crimes have been subject to international prosecutions. Many countries lack the financial resources and strong, stable political institutions required to tackle such an enormous judicial task, so it is no surprise that many countries rely on international facilitators.

In a 2015 article published in Human Rights Quarterly, “After Amnesties are Gone: Latin American National Courts and the Contours of the Fight Against Impunity,” law professor Naomi Roht-Arriaza of the University of California takes a close look at this issue. She considers Latin American countries’ efforts to conduct manageable and fair trials and the lessons learned from those efforts.

Among her key findings:

  • During the transition to civil government from military control, the incoming and outgoing leaders of a Latin American country have often negotiated amnesty laws as a compromise to guarantee the transition and avoid any military retribution. As a result, simply getting any criminal cases accepted by the courts was a prosecutorial feat because the amnesty laws, which differed in some respects from country to country, forbade even opening an investigation into crimes related to human rights.
  • Early challenges to amnesty laws were entirely unsuccessful. But, eventually, many countries began to employ legal strategies designed to go around the amnesty laws and find loopholes. For instance, Latin American military governments used forced disappearance as a leading counterinsurgency tactic. In most countries in the region, no one can be charged with murder without the presence of a dead body. Without a body, the exact date of death is unknown and, therefore, the crime could have occurred outside the time-constrained amnesty laws. Getting rid of victims’ bodies is a strategy that also avoids any statute of limitations, since there is no body, there is no date in which the statute can begin.
  • Direct challenges to amnesty laws began when Latin American judges found that the laws violated customary international laws, such as the 1949 Geneva Convention.
  • A minority of Latin American courts upheld the amnesty laws. Though amnesty laws are deemed unacceptable now, they were not at the time they were enacted, and judges should not simply overturn laws through “retrospective lawmaking.”
  • Once a case is accepted, authorities need to determine who is liable. Argentina opted for mega-trials, in which “each and every person involved in the crime” was prosecuted. The goal was to consolidate every case that involved a single massacre or detention facility into a single trial that involved all the victims and all the alleged perpetrators. These trials did not begin until the 2000s, however, and by then many offenders were dead or sickly, others were in hiding, and many were simply unknown because they had killed their victims and there were no witnesses.
  • As many high-level perpetrators were charged, some prosecutors began to implicate civilian conspirators and accomplices, such as members of the Catholic clergy, business leaders, doctors and lawyers.
  • Because the violations perpetrated in Southern Cone countries were relatively limited in terms of time frames and numbers of defendants, investigations and trials were more feasible than in Central America, where conflicts lasted much longer and the numbers of defendants and victims are much higher. Therefore, prosecutors tended to focus on high-profile leaders and incidents. In Guatemala in 2013, for instance, former President Jose Efrain Rios Montt was convicted of genocide for his so-called counterinsurgency tactics against the Ixil-Maya people in the early 1980s. Less than two weeks later, however, the Constitutional Court ordered the sentence annulled and ordered a retrial. As of June 2016, no retrial date has been set.
  • While it is important to focus on the top leaders who ordered or carried out such crimes, especially from a resource and moral perspective, focusing on just those at the top of a bureaucratic structure can potentially lead to excluding informal leaders who committed particularly egregious crimes. This is especially important in large, diverse countries, such as Colombia, where the nature of the conflict may have varied across regions.

While it is important that national courts throughout Latin America have taken steps to prosecute human rights abuses that transpired over the past five decades, the author concludes that it is important to not overstate the advances. The prosecutions are not quick or easy. Most undergo many appeals processes and many defendants claim medical or other excuses to delay trials. In addition, in contrast to the International Criminal Court — which sees the duty of the state to prosecute such crimes under international criminal law independently of the victims, thereby setting the precedent that prosecution is only effective if it followed by “swift, sure, and harsh punishment” — national courts allow “creative amnesties so long as the rights of victims are respected.”

Related Research: A 2013 article in the Law & Society Review,Human Rights Prosecutions and the Participation Rights of Victims in Latin America,” considers how private prosecution has helped nongovernmental organizations (NGOs)  pursue the criminal prosecution of human rights violations.

 

Keywords: Latin America, impunity, amnesty, dirty war, human rights, Central America, Mexico, state-sanctioned violence, reconciliation, truth commissions

Last updated: July 6, 2016

 

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Citation: Roht-Arriaza, Naomi. “Human Rights Prosecutions and the Participation Rights of Victims in Latin America,”Human Rights Quarterly, 2015, Vol. 37. doi: 10.1111/lasr.12040.