The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America

Abstract

I. INTRODUCTION During the Falklands/Malvinas War of 1982, the British captured Argentine Navy Captain Alfredo Astiz. Non-governmental human rights organizations accused Astiz, a notorious figure during Argentina's "dirty war," of involvement in the disappearance of two French nuns, the arrest and killing of a Swedish girl, and the interrogation, torture, and disappearance of hundreds of Argentines at the Naval School of Mechanics in Buenos Aires.1 After his capture, France and Sweden asked to question Astiz concerning their nationals, and the British transported him to London for that purpose. Astiz, availing himself of the protections afforded by the Geneva Convention on Prisoners of War, refused to answer. Although there was substantial evidence against him and the Geneva Conventions do not shield prisoners of war from prosecution for human rights crimes, neither country sought his extradition, nor did Britain entertain trying him in the United Kingdom.2 Instead, he was repatriated to Argentina. Seventeen years later, the British government arrested Chilean General and former President Augusto Pinochet on a Spanish extradition warrant for torture and other human rights crimes. This time, the British courts assiduously considered the jurisdictional issues posed by the Spanish request and determined that the Spanish courts had jurisdiction to try Pinochet for crimes committed in Chile over a decade before. Although British authorities ultimately allowed Pinochet to return to Chile, finding that he was too incapacitated to stand trial, the events in Europe had important political repercussions in Chile that are now rippling across Latin America and the rest of the world. Taking a lesson from Spain, a Netherlands court has determined that under a theory of universal jurisdiction it can try former Surinamese military dictator Desi Bouterse for human rights crimes committed in Suriname in 1982.3 From a political point of view, it would have been easier to try Astiz in 1982 than Pinochet in 1999. Astiz was a mid-level naval officer of a country then at war with Britain. Trying him for human rights violations would have given substance to the British government's rhetoric about the repressive nature of the Argentine regime. Pinochet was a former head of state and current senator-for-life of a country that had supported Great Britain during the Falklands/Malvinas War. This Article examines what changed between 1982 and 1999 that made Pinochet's arrest in Britain possible. We address two main questions: (1) why, in the last two decades of the 20th century, was there a major international norms shift towards using foreign or international judicial processes to hold individuals accountable for human rights crimes; and (2) what difference have foreign judicial processes made for human rights practices in the countries whose governments were responsible for those crimes. A. THE IMPETUS FOR THE "JUSTICE CASCADE" We argue that the surge of foreign judicial proceedings was neither spontaneous, nor the result of the natural evolution of law in the countries where the trials occurred. Rather, it was the result of the concerted efforts of small groups of activist lawyers who pioneered the strategies, developed the legal arguments, often recruited the plaintiffs and/or witnesses, marshaled the evidence, and persevered through years of legal challenges. These groups of lawyers resemble an advocacy network, in that they are interconnected groups of individuals bound together by shared values and discourse who engage in dense exchanges of information and services.4 The transnational justice network was atypical, however, because its membership was confined to a handful of groups of lawyers with appreciable technical expertise in international and domestic law who systematically pursued the tactic of foreign trials. In this sense, the transnational justice network resembles what political scientists call an epistemic community-a network of professionals engaged in a common policy enterprise with recognized expertise and competence in the particular domain and an authoritative claim to policy-relevant knowledge in that issue or domain. …