IN RECENT YEARS, THE THEORY AND PRACTICE OF HUMAN RIGHTS PROTECTION HAS BEEN largely shaped by the struggle of organizations in civil society to overcome the recurring cycle of impunity for the most egregious crimes committed in the exercise and abuse of authority. The detention of General Augusto Pinochet in London, for purposes of extradition to Spain, was a veritable leap forward in the development of tools for human rights protection. This stunning development forces jurists everywhere to rethink the proper balance between notions of sovereignty and nonintervention in internal affairs and effective ways to implement fundamental principles of humanity. It also greatly expands the debate over what states and the international community owe to victims of egregious abuse beyond the limited circles of the international human rights movement.
Before the Pinochet case, though, there were important developments in the struggle to overcome impunity, often inextricably linked to the transitions from authoritarian rule to democracy. In each society undergoing such a transition, the issue of how to deal with the legacy of past abuses has been high on the agenda of emerging democracies. As similar problems arise in other communities, experiments put in practice to date have been examined with great interest. In the few countries that have attempted to prosecute such crimes, heavy pressure from entrenched military elites has often been brought to bear. Even when such pressure is absent, invocations to a false "reconciliation" thinly disguise a business-as-usual attitude that serves to evade the course of justice. In the many countries where truth commissions have been appointed, a profound ethical and political debate has arisen over the value of criminal prosecutions -- often, though not necessarily always -- as opposed to truth-telling.
This essay focuses on efforts at accountability in Latin America, and specifically on the contributions of the Inter-American Commission and the Inter-American Court of Human Rights -- the bodies that implement international human rights law in the region -- to that struggle. The picture is complex. Undoubtedly, the most ingenious and promising initiatives to restore truth and justice and to overcome impunity are grounded on national realities and emanate from domestic organizations of civil society or from the will of national democratic leaders. Yet pioneering decisions by inter-American bodies have also inspired and given a solid legal footing to some of those enterprises. As described below, the presence of inter-American bodies is at times clearly discernible and even precedent setting, whereas in other areas they have been silent or clearly lag behind national institutions in the development of progressive legal principles.
The Phenomenon of Impunity and the Present Status of the Struggle to Overcome It
We refer here to impunity for the most egregious human rights crimes, such as extrajudicial execution, torture, and disappearances, when committed systematically or on a wide scale. Of course, many other crimes also go unpunished for one reason or another. In addition, many Latin Americans rightly decry the pervasiveness of impunity for other illegal actions committed by high officials, particularly acts of corruption. Our views apply only to impunity for the most serious human rights crimes because, in their regard, emerging principles of international law require their effective prosecution and punishment, disclosure of the facts, reparations to the victims, and an effort to cleanse the security forces of their perpetrators (Mendez, 1997a: 255 et seq.).
Our analysis refers to impunity for such crimes whether they result from de facto or de jure impunity. The former occurs when crimes are not investigated thoroughly, or are not prosecuted, simply because of a lack of will to do so by the officials in charge of institutions with specific duties in that regard. …