In Verònica Michel and Kathryn Sikkink’s article, “Human Rights Prosecutions and the Participation Rights of Victims in Latin America”, they argue that participation rights have been fundamental in creating a legal framework that allows a government’s civil society to seek accountability for past human rights abuses committed by a state. Participation rights, in particular private prosecution, are introduced to further explain this pathway to justice. Private prosecution refers to the right of victims or their relatives to make a claim against the state. Other rights under private prosecution include: the right to request investigations, the right to have access to pertinent files, the right to participate during the hearings and trials, the right to bring evidence and question witnesses, and the right to appeal any decision that may supersede the prosecution such as dismissals, acquittals, or plea bargains. Michel and Sikkink use case studies in Argentina, Chile, and Uruguay to support their argument that private prosecutions are effective in ensuring accountability on behalf of a state. Although these states faced similar repression by their state in the 1970s, Argentina and Chile have had the opportunity and resources to seek justice within their domestic system more than Uruguay, who does not have these provisions within its legal system.
An example of effectiveness is in 1978 the Chilean government enacted a self-amnesty law that prevented state officials, such as dictator Augusto Pinochet, from being put on trial for human rights crimes committed between 1973-1978, unless cases were already open or a state official had been already convicted. Due to this law, the only goal of the NGOs working with victims was to keep cases open. They were successful because the private prosecution provision contains legal standing. Eventually, the transition towards democracy, judicial reform, and the publicized temporary arrest of Pinochet in the UK in 1998 promulgated these cases to finally be introduced to the courts. In the end, private prosecutors used new legal arguments that encapsulated both the state’s obligation to abide by international treaties and its own domestic laws to reopen an estimated 1,342 cases and has resulted in the conviction of 799 state agents since 2000. On the other hand, in Uruguay, the lack of a similar provision has made it difficult for victims to attain justice because there is no legal grounding in introducing cases within the court system. Without provisions like private prosecution, putting individuals on trial for human rights crimes is far more politicized, and is in the end at the discretion of the government’s sympathy to hear the case. This article highlights the importance of participation rights like private prosecution to ensure transitional justice for victims of human rights abuses.
The article was published in the Law and Society Journal, and the intended audience are professionals and academics whose interests relate to the legal field. The authors’ article is effective in that both authors have authority to discuss this particular topic. Verònica Michel is an Assistant Professor of Political Science at John Jay College of Criminal Justice and specializes in the field of victim’s rights, rule of law, and legal mobilization, with a regional focus on Latin America. Kathryn Sikkink is the Regents Professor in Political Science at the University of Minnesota and focuses on the influence of international law on domestic politics. The main strength of this article is that it presents new research on private prosecutions. The authors’ method of research was based on collecting data related to private prosecutions and included tables to complement their arguments. Tables include: The Justice Cascade, Regional Distribution of Domestic Transitional Prosecutions, and a list of Latin American countries granting private prosecution and outcomes of the trials.
The article highlights that provisions instituted within a state’s legal system can help encourage the pathway to justice in human rights violations. Although human rights issues can seem politicized and accountability may take a long time, through the efforts of civil society working with victims and legal provisions like private prosecution can keep state agents from impunity.
I chose this picture because it illuminates the importance of looking in the past to recognize injustices in order to seek accountability in human rights. This photo was taken during a protest in Chile regarding transitional justice for victims during the repression enacted by Pinochet’s regime. Photo Credit: http://www.radiorebelde.cu/english/commentaries/chile-40-years-later-20131002/