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

TLDR: In this paper, the authors examine the role that procedural law has had in allowing societal actors to influence in this rising trend for individual criminal accountability by focusing on participation rights granted to victims, such as private prosecution.

Abstract: Since the 1980s, there has been a significant rise in domestic and international efforts to enforce individual criminal accountability for human rights violations through trials, but we still lack complete explanations for the emergence of this trend and the variation observed in the use of human rights prosecutions 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 exploration 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 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. …