Expert Commentary

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

2015 article in which law professor Naomi Roht-Arriaza analyzes the efforts of Latin American courts to challenge amnesty laws and prosecute human rights violations.

Caracas (Unsplash/public domain)

The Issue: In July 2016, El Salvador’s highest court overturned the amnesty laws that the nation’s previous governments had upheld, paving the way for the legal prosecution of individuals suspected of committing crimes during the country’s 1980-1992 Civil War. For decades, government and military officials throughout Latin America were not prosecuted for the crimes or human rights violations they had 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 such as murder and torture should be held accountable — whether those crimes took place decades ago, as in the case of El Salvador, or more recently.

An academic study worth reading:After Amnesties are Gone: Latin American National Courts and the Contours of the Fight Against Impunity,” published in 2015 by Human Rights Quarterly.

Study summary: This article, authored by law professor Naomi Roht-Arriaza of the University of California Hastings, takes a close look at how nations seek justice for crime victims and their families after amnesty laws expire or are overturned. Roht-Arriaza examines Latin American countries’ efforts to conduct manageable and fair trials and the lessons learned from those efforts.

Key findings:

  • Getting criminal cases accepted by the courts is difficult because the amnesty laws, which differed in some respects from country to country, forbade opening an investigation into crimes related to human rights. Early challenges to amnesty laws were entirely unsuccessful. Eventually, many countries began to employ legal strategies designed to go around the amnesty laws and find loopholes.
  • A minority of Latin American courts still uphold past amnesty laws. They argue that while 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 by a judge, 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 of the alleged perpetrators. These trials did not begin until the 2000s, however. By then, many offenders were dead or sickly, others were in hiding, and many were simply unknown because they had killed their victims and left no witnesses.
  • Because the violations perpetrated in Southern Cone countries of Latin America were relatively limited in terms of time frames and numbers of defendants, investigations and trials were more feasible than in Central America. In Central America, conflicts lasted much longer and the numbers of defendants and victims are much higher.
  • While it is important to focus on the top leaders who ordered or carried out such crimes, focusing on just those at the top of a bureaucratic structure can exclude 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.
  • 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 is followed by “swift, sure, and harsh punishment” — national courts allow “creative amnesties so long as the rights of victims are respected.”

Helpful resources for reporters writing about this issue:

  • The International Criminal Court investigates “the gravest crimes of concern to the international community,” including genocide and war crimes.
  • The Geneva Conventions of 1949 outline rules for protecting various groups of people, including prisoners of war and civilians, during times of war.

Related research:

  • 2005 article in The American Historical Review, “The Instruction of Great Catastrophe: Truth Commissions, National History, and State Formation in Argentina, Chile, and Guatemala,” explores the limitations of truth commissions. While they provide a means to reflect on the divisiveness within a country, they are not “instruments of justice.”
  • 2002 article published in Latin American Perspectives, titled “Tracking the Origins of a State Terror Network: Operation Condor,” offers journalists some historical context on state-sanctioned violence, including murder and torture.


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


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