Academic journal article American University International Law Review

Prosecutorial Discretion in the Investigation and Prosecution of Massive Human Rights Violations: Lessons from the Argentine Experience

Academic journal article American University International Law Review

Prosecutorial Discretion in the Investigation and Prosecution of Massive Human Rights Violations: Lessons from the Argentine Experience

Article excerpt

I.INTRODUCTION

The international community condemns serious human rights violations such as genocide, torture, enforced disappearances, and summary executions. When these crimes are committed in a particular State, the authorities have the international obligation to seek the truth and to prosecute and punish any person who is found responsible. States cannot enact amnesty laws nor grant pardons to prevent human rigths offenders from facing justice.

But, what happens when tens of thousands of crimes are committed, for instance, in the context of armed conflicts or tyrannical regimes? In these scenarios, States face some structural obstacles that may retard or impede the investigation and prosecution of human rights abuses. First, because justice systems have limited resources, they cannot handle the extraordinary amount of cases and get overwhelmed by backlogs. Second, because these types of crimes are particularly difficult to investigate and to prove, prosecutors may not be able to collect sufficient evidence to convict all of the offenders.

Some States allow prosecutorial discretion as a tool to deal with similar difficulties in the investigation and prosecution of domestic crimes. Granting prosecutors discretion to select cases allows them to reduce workloads and to allocate resources more rationally. Moreover, prosecutors can obtain valuable evidence by offering immunity to certain offenders who cooperate with the prosecution of other criminals. Yet, it is not clear whether international law authorizes prosecutorial discretion in the investigation and prosecution of serious human rights violations.

This article examines the recent process of truth and justice in Argentina, and describes the practical difficulties that a State faces during the investigation and prosecution of massive human rights abuses. It explains why prosecutorial discretion is an useful tool to overcome these obstacles, and it addresses the question of whether international law authorizes this practice. This article supports the proposition that the international obligation to investigate and prosecute serious human rights violations should not be construed as prohibiting the exercise of prosecutorial discretion. But, at the same time, it argues that international law imposes substantive and procedural limits on prosecutors' discretionary powers. In short, international law only allows States to exercise some limited prosecutorial discretion to advance the discharge of the duty to investigate and prosecute, provided that it is regulated by law and that victims are afforded a judicial recource to control its application in each case.

This article is divided into five sections. Section II describes the sources, scope, and rationales of the international obligation to investigate and prosecute serious human rights violations. Section III explains the structural obstacles domestic justice systems experience when trying to discharge that obligation. It describes the current process of accountability in Argentina and shows the problems that arise when a domestic system tries to investigate and prosecute mass crimes. It further explains why prosecutorial discretion is a necessary tool to overcome those structural obstacles. Section IV explains how international law regulates the exercise of prosecutorial discretion in these contexts. Finally, Section V draws the conclusion that the prohibition of prosecutorial discretion would be detrimental to the goals of the obligation to investigate and prosecute, and that a better approach is to interpret international law as regulating its exercise.

II.THE OBLIGATION TO INVESTIGATE AND PROSECUTE SERIOUS HUMAN RIGHTS VIOLATIONS

The duty to prosecute grave offences against human rights originally developed in the area of international humanitarian law, in connection with international conflicts. 1 After the horrors of World War II, the Nuremberg Trials introduced the concept of crimes against humanity, which is based on the principle that fundamental rights are inherent to the human condition, but still requires a nexus with war crimes. …

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