Book Review: The Impact of Human Rights Prosecutions: Insights from European, Latin American, and African Post-Conflict Societies

Ulrike Capdepón and Rosario Figari Layús, eds. The Impact of Human Rights Prosecutions: Insights from European, Latin American, and African Post-Conflict Societies. Leuven University Press, 2020.

Note: After publishing this book review, the editors learned that the author of this review had submitted a chapter on Guatemala that was not included in the text. The Editors. (June 2022)

Early on in her 2018 book about Argentina’s human rights trials[1], Rosario Figari Layús notes that justice given by domestic courts is the thing most wanted by victims of human rights crimes, and at the same time the thing most difficult to come by.  This kind of justice is most wanted not only because of the punishment and the public record of crimes committed that come with the prosecution of perpetrators, but also because trials give voice to victims and allow a cathartic release.  Prosecutions satisfy in a way that truth commissions, memorials and other reparative measures cannot  They are unique among other transitional justice instruments for their ability to apply justice most directly to the wounds of mass killing, torture, disappearance and other such violations.

But what are the effects of such trials?  Is the truth about what happened better or more widely known in the country where the crimes occurred?  Is that country now a more democratic nation because of human rights trials?  Have the victims been sufficiently redressed?  Have the perpetrators been duly punished?  Is the rule of law any stronger in the country?  Have human rights violations stopped or lessened due to the trial? 

These are the questions that Figari Layús tries to collect answers to in The Impact of Human Rights Prosecutions, a 2020 anthology she co-edited with Ulrike Capdepón that examines post-conflict societies in Europe, Latin America and Africa. 

Human rights trials, the book begins, help ensure that atrocities never happen again.  They re-legitimize social order and state institutions by signaling a new commitment to human rights and democratic principles, says the book.  They establish norms of accountability where none were.  But these are theoretical expectations, and the book’s findings bear this out.  Why would prosecuting past perpetrators inhibit future perpetrators?  Similar to how the global adoption of anti-genocide law some seventy years ago has not put an end to genocide, trying and convicting human rights violators does not dissuade violators-to-come for the simple reason that perpetrators do not pause to deliberate law or possible punishment before they embark on mass oppression.  It is not a consideration or, therefore, a deterrent.  History has proven this.  Why also would a trial or even a conviction correct institutional corruption or impunity, or equalize social or political status within a country?  It is quite possible, as the studies in this book demonstrate, that trials are given too much promise on a state or institutional level.

Each chapter is devoted to a different country experience and follows a similar pattern: a review of the conflict and the human rights crimes it gave rise to; a discussion of the efforts and methods in bringing the accused to trial, including the factors impeding such efforts; the outcome and aftermath of trials (if trials were held), including a discussion of the trials’ effect or impact.  One of the main problems with the book is that a disproportionately small amount of each country study addresses “impact,” possibly because there is not much to say about it given that impact is difficult to measure, or that it may be too soon to see or evaluate change, or because there hasn’t been much impact.  

The book falls short of its intended goal in other ways.  A glaring omission is the absence of Guatemala’s “trial of the century” from the section on Latin America.  There is no recognition in the book of that country’s 2013 genocide and crimes against humanity trial brought by Guatemala’s own public prosecutor against the de-facto president and defense minister in power at the time of the country’s mass killing.  How can such a rare event not be part of a book with such goals given the trial’s historic significance and given that the opportunities to study the effects of trials are so few and far between?  In Guatemala’s case, the trial has had detrimental effects on the upholding of law, judicial neutrality, anticorruption and anti-impunity, and democracy—reversing the progress that had been made in the years leading up to the trial.  Neither has the trial dampened human rights abuses in the country.  This information would have made an important contribution to the book.

The book frequently references Kathryn Sikkink’s “justice cascade” theory—the idea that the prosecution of human rights crimes has changed world politics, that trials in one country have unleashed a flow of human rights justice to other countries, bringing a worldwide “revolution in accountability.”  But in the end, the book’s findings contradict these claims, concluding in case after case that “the trial did not provide (new) answers or remarkable insight” toward truth (Romania); that “Absolutely nothing has changed … the courts keep condoning impunity” (Chile); that “(victims) are still waiting for justice” (Chile); that the “norms of accountability have further weakened from a retributive justice perspective” (Uruguay); that “the prevailing public attitude toward state crimes is ‘denialism’” (Peru); that “none of the major actors charged with crimes … has (sic) been brought to justice” (Darfur); that “the struggle against impunity seems even to have gone backward” (Spain, Kenya).  Nor does the continued occurrence of human rights abuses in nations around the world corroborate Sikkink’s theory.  While there may have been a prosecution cascade in the last few decades, prosecutions or attempts at prosecution do not mean justice, again, as the examples in this book show. 

All in all, the book comes up shy in answering the questions it proposes to answer mainly because too many of the book’s ten country studies fail to discuss impact in any sustained or substantive way.  But the book does contain findings useful in understanding the prosecution process, especially the inabilities of prosecutions to provide justice, and the political and judicial realities that oppose it.  The book’s conclusion successfully pulls the most revealing findings from each country study that pertain to what helps and hinders justice-seeking through trials.  And while it cannot point to significant improvements in the rule of law, human rights, criminal accountability, democratic inclusion or any other of the larger goals of transitional justice, the book does present progress toward judicial acknowledgement and collective memory construction that has occurred because of the trials described in this book.

Independent Scholar, Massachusetts

[1] Figari Layús, R. The Reparative Effects of Human Rights Trials: Lessons from Argentina, Routledge, 2018