Human Rights Prosecutions and the Participation Rights of Victims in Latin America

Published date01 December 2013
Date01 December 2013
DOIhttp://doi.org/10.1111/lasr.12040
Human Rights Prosecutions and the Participation
Rights of Victims in Latin America
Verónica Michel Kathryn Sikkink
Since the 1980s, there has been a significant rise in domestic and international
efforts to enforce individual criminal accountability for human rights viola-
tions through trials, but we still lack complete explanations for the emergence
of this trend and the variation observed in the use of human rights prosecu-
tions in the world. In this article, we examine the role that procedural law has
had in allowing societal actors to influence in this rising trend for individual
criminal accountability. We do this by focusing on participation rights granted
to victims, such as private prosecution in criminal cases. Based on an explo-
ration of an original database on human rights prosecutions in Latin America
and fieldwork research in three countries, we argue that private prosecution is
the key causal mechanism that allows societal actors to fight in domestic courts
for individual criminal accountability for human rights violations.
Since the 1980s, we have witnessed a significant rise in domestic
and international efforts to enforce individual criminal accountabil-
ity for past human rights violations in democratizing states, a
phenomenon that some have defined as a “revolution in account-
ability” (Sriram 2003), or a “justice cascade” (Lutz & Sikkink
2001; Sikkink 2011). Human rights prosecutions undermine long-
standing beliefs and practices of impunity of state officials for past
abuses, making them important vehicles for bringing about change
in world politics. Recent research suggests that such prosecutions
This article is based upon research supported by the National Science Foundation(Grant
no. 0961226) and the Arts and Humanities Research Council (Grant no. 0AH/I500030/1)
relating to the project titled “The impact of transitional justice on human rights and
democracy.” Parts of this material are also based upon research funded by the Pre-
Dissertation Fieldwork Grant from the International Center for the Study of Global Change,
the International Thesis Research Grant, and the Doctoral Dissertation Fellowship of the U.
of Minnesota. Any opinions, findings, and conclusions or recommendations expressed in this
material are those of the authors and do not necessarily reflect the views of the University of
Minnesota, the NSF, or the AHRC. We would like to thank the editors and anonymous
reviewers who provided insightful comments and suggestions that greatly helped us improve
this article. We also wish to thank our NSF/AHRC research teams for their assistance with
data for this article, and in particular, GeoffDancy for preparation of Figure 2.
Please direct all correspondence to Verónica Michel, Department of Political Science,
John Jay College-CUNY, 524 West 59th St., New York, NY 10019; e-mail: vmichel
@jjay.cuny.edu.
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Law & Society Review, Volume 47, Number 4 (2013)
© 2013 Law and Society Association. All rights reserved.
can have an impact on improving human rights conditions, con-
solidating democracy, and preventing the renewal of conflict in
the long term (Kim & Sikkink 2010; Sikkink 2011; Dancy 2013).
Therefore, understanding the origins and prevalence of such pros-
ecutions warrants our attention.
The literature has already put forward various explanations of
the rise of human rights prosecutions, among these the type of
transition to democracy, the degree of independence of the judi-
ciary, and regional diffusion figure most prominently. Further-
more, previous research has highlighted the importance of
international law and the presence of nongovernmental organiza-
tions (NGOs) to the efforts against impunity in human rights cases.
However, the literature has failed to address the causal mechanisms1
that allow NGOs and international law to impact human rights
prosecutions. Here, we argue that by taking into account partici-
pation rights of victims, we improve our theoretical understandings
of how NGOs use domestic and international law in domestic courts
to push for individual criminal accountability. Domestic human
rights NGOs have an impact on human rights prosecutions because
they do not simply engage in “naming and shaming,” but also
litigate using participation rights such as private prosecution, which
allows them to bring claims to domestic courts and introduce legal
arguments that draw on international human rights treaty law.
In this article, we introduce the right to private prosecution, an
often-overlooked institutional feature of some criminal justice
systems, as the key causal mechanism that determines where and
how societal actors are able to influence human rights prosecutions.
The right to private prosecution allows victims and their lawyers,
including domestic human rights organizations, to open a criminal
investigation and actively participate throughout every stage of
the criminal proceedings. In this article, we make two main claims:
(1) private prosecution works as the vehicle through which societal
actors engage in legal mobilization, bring human rights claims to
the courts, and use and introduce international human rights law;
and (2) that legal fights take place within a political and institutional
context in which, at the very least, private prosecution opens doors
for accountability by offering legal resources for societal actors to
push for justice. Private prosecution also helps overcome barriers
that state prosecutors face in holding other state officials account-
able. Since human rights violations usually involve crimes commit-
ted by state officials, we might say that the state has a conflict of
interest when it comes to human rights prosecutions. Even where
the state is efficient in prosecuting ordinary crime, it may not be
1A causal mechanism is defined here as an intervening variable through which
explanatory variables produce causal effects (George & Bennett 1997).
874 Participation Rights of Victims
good at prosecuting itself. Private prosecutors thus assist in initiat-
ing and in keeping open human rights cases that would not have
prospered without their involvement.
We make two contributions. Theoretically, we introduce par-
ticipation rights of victims as the causal mechanism that accounts
for where and how societal actors impact human rights prosecu-
tions. In those countries where participation rights include private
prosecution and a support structure is in place, we should see
societal actors seize the opportunity to use litigation as a strategy to
fight against impunity. When the political context is not ripe for
justice, private prosecution also helps us understand how societal
actors use legal resources to keep cases open. Empirically, we
support these arguments drawing on a new database of human
rights prosecutions in Latin America2that for the first time includes
data on private prosecution, and offer preliminary evidence that
shows that private prosecution has indeed been a legal right used
by societal actors to push for justice for past human rights viola-
tions. Furthermore, we compare countries that have private pros-
ecution (Argentina and Chile) with a country that does not offer
the right to private prosecution (Uruguay) to show why and how
victims’ participation rights enable societal actors to bring and
sustain their fight through domestic courts.
Global and Regional Trends in Human Rights Prosecutions
The justice cascade refers to a shift in the legitimacy of the
norm of individual criminal accountability for human rights viola-
tions and an increase in criminal prosecutions on behalf of that
norm (Sikkink 2011). We can gauge the strength of the justice norm
by documenting the increasing use of criminal prosecutions at the
domestic and international levels, drawing on data from the Tran-
sitional Justice Database on human rights prosecutions for all tran-
sitional countries, that is, countries moving from an undemocratic
regime to a more democratic regime.3Figure 1 visually depicts the
global norm cascade, and shows that until the mid-1980s, an
increase in prosecutions is hardly noticeable. By the early 1990s,
the number of such events began a steep increase. As is evident
here, the bulk of trials are domestic prosecutions, i.e., they are
occurring in the national courts of the country where the human
rights violations originally occurred. Any explanation for the
2This database was coded in collaboration with the University of Minnesota/Oxford
Transitional Justice Database project.
3The Transitional Justice Database project is available at: http://www.transitional
justicedata.com
Michel & Sikkink 875

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