Authored by Iván Luzardo Ruiz-Attorney (Universidad de la República, Uruguay), LL.M Law and Human Rights (Birkbeck College, University of London, United Kingdom)
Introduction
The legal sources are various and have different functions, with some categorised as “communicative” due to their role in conveying information to society. In the current global context, we permanently face gross violations of Human Rights[i], which are legally considered under international and domestic legal frameworks. However, a pertinent question arises when violations and the people involved, as victims, are not considered by this framework. Hence, the situation harming different HR is not fully comprehended, carrying ´incomplete Justice´ or no Justice for the victims.
While judicial actions in some instances may deliver formal justice, there exists a potential harm: the failure to acknowledge the comprehensive context of the situation. This oversight can lead to a negative outcome, as cases not considered within the appropriate HR perspective might foster the belief within society that these violations never occurred.
This may involve many sides, addressed in the proposal of this essay: the lack of recognition of victims as HR violations victims, denying them and their families the Right to Justice, and the lack of complete comprehension, which affects the whole society and vulnerates their Right to Memory, jeopardising the building of their future.
1. The Southern Cone: Argentina and Uruguay
In Latin America, particularly in the Southern Cone, societies have a shared and painful history in recent years due to the dictatorships and military regimes that governed for decades. Under these regimes, countless Human Rights violations were committed, and the victims are seeking Justice until the present.
In many cases, these victims live in States where HR protection systems are in force, like the UN or the InterAmerican System, and have developed their domestic framework. However, current challenge is the appropriate applicability of these instruments and standards, acknowledging the violations rather than complying with the formal aspects.
In Uruguay (which is part of both systems, UN and InterAmerican) and has domestic law in this regard, there have been cases where perpetrators of Human Rights were not considered under these, which has meant – from a critical political and social perspective – the negative to considerate victims as what they are, and hence, the negative to fully consider that Human Rights violations were committed. In other words, some situations of gross violations of HR were considered merely as regular crimes, meaning the denial to accomplish and recognise the HR sphere on the matter.
Two prominent authors on the field must be mentioned and referred to when going through these topics. On the one hand, Kathryn Sikkink, a broadly recognised expert on Human Rights, approaches from a critical perspective and has profoundly studied and spread the case of Argentina judging and convicting criminals who committed crimes against Humanity under the State Terrorism times (1976-1983).[ii] The importance of this research relies on several crucial aspects. The Argentinian case is the first country to build a legal architecture to convict criminals in terms of legal impunity and amnesty for the perpetrators. These trials became iconic and were even reproduced and novelised in the recent movie ´Argentina 1985´.
The other researcher to be named is Francesca Lessa, who has deeply studied the gross HR violations in the Southern Cone during the 1960s and 1970s, and was able to show – in the Western context – how the Condor Plan operated as a coordinated plan to prosecute and exterminate political opposites.[iii]
i. The case of Uruguay
As mentioned above, Lessa accurately described the context of HR in Uruguay regarding the violations committed during the last dictatorship.[iv] However, when the author explains the chronological order of events, she points out that the criminal figure under which the criminals were convicted was, in some cases, ´aggravated homicide´.[v] In some other cases, the figure varied and accumulated, depending on the facts and suffering of the victims. The main discussion regarding this lies in the difference in considering ´forced disappearance´ (a legal figure which was considered by the IACtHR for the first time due to the first case that was filled in this court, Velásquez Rodríguez vs. Honduras), which has non-statutory limitations, or regular homicide, which in many cases would be impossible to prosecute due to the time that has past gone.
The Inter-American Court of Human Rights has acknowledged victims of forced disappearance under the accountability of the Uruguayan state.[vi] This carried different measures of reparation the State had to deliver. Nevertheless, the perpetrators – if judged – were not formally and legally considered as responsible for forced disappearance. In the case mentioned, the perpetrators were judged in criminal terms under regular laws, not HR regulations. To a further extent, one of the first judgments in Uruguay on the subject of forced disappearance was innovative in legal terms, as it was able to build a scenario in which the death of the victim[vii] was presumable by context. Therefore, the accused person could be convicted under the figure of homicide, even without the known existence of the corpse of the victim.
About the crime of forced disappearance and linking to the idea of current impunity developed below, it is crucial to highlight some substantial aspects. In the words of María Clara Galvis Patiño, this crime is absolutely unique because of its nature and its punishment encompasses the obligation to search for the disappeared person, the continuing character of the crime until the person appears (and hence, the possibility to prosecute it) and the continuous accountability of the country whose under jurisdiction was the crime committed.[viii]
Uruguay has followed – and still is – a long path on HR matters regarding the dictatorship, that embraces all possible sides of democracy: legal aspects, political points of view, among others. The legal, for natural motives, has been one of the most important and difficult to tackle. It is beyond the purpose of this essay to examine the legal barriers that existed and exists today in Uruguay and that undeniably support impunity, as Lessa concludes.[ix]
However, taking as a starting point the legal barriers as an aspect where impunity relies on, it is possible to examine further and establish that the mis-consideration of HR legal instruments is not only a legal aspect but also a substantial one, as it recognizes the crimes committed, affecting the Humanity as a whole concept, that those crimes enclosed a different meaning than ´regular´ homicides, for instance. To a wider extent, allowing this to happen, means to allow a narrative in which in Uruguay never occurred HR violations, as changing the legal instruments led to difficulty in proving them, hence punishing them.
This is one of the most harmful aspects related not only to the right of justice but to the right of memory, which is entitled to the whole society rather than just the directly affected victims. In these terms, it would be possible to draft that societies are victims of HR violations when these violations jeopardize their peace and their capacity to build a future based on values such as democracy and freedom.
Impunity also means the misled acknowledgement of HR violations. In addition, these violations have not an ´expiry date´, as was stipulated in the Treaties that regulated Crimes Against Humanity. To a further extent, it is correct to say that these gross violations are still occurring, given the features of enforced disappearance mentioned above. Considering this makes us conclude this crime is still and currently happening nowadays. Hence, even when the obligation of prosecution is independent, the perpetrators remain safe under impunity.
It is important to highlight, anyway, that despite the formal legal aspects, efforts on the defense of HR have had some rewards and authorities, civil population, and Scholars among others, addressed these crimes, contributing to reach Justice in some cases.. In the country, there exists even a Unit in the President´s Office dedicated to studying Recent Past, and a Specialized Prosecutor of Crimes against Humanity, that has actively participated in the related trials.
ii. The case of Argentina.
As mentioned before, the Argentinian case is unique for many motives, such as the well-known ´Juicio a las Juntas´(Trial to the Military Juntas), which was the first legal art-work that allowed the conviction and punishment of HR criminals.[x] [xi] At the same time, it shares many aspects with Uruguay, Chile, Paraguay and even Brazil, as their governments acted in coordinated ways.[xii]
Due to the large and complex path followed by the Argentinian, its example has become a paradigm of transitional justice for the region.[xiii] Par Engstrom and Gabriel Pereira summarize the actions taken for and against impunity, showing the key role that many actors may play, such as the Presidents and the HROs and how judiciary practices can effectively influence these situations. Yet, the country faces several and deeper problems regarding this, which shows firstly, the complexity of the matter, and secondly, that Latin America is still struggling and will struggle to defeat impunity.
2. Innovating initiatives: the Colombian victim-oriented approach
In attempting to answer what means to be a victim under the HR legal framework from a Latin American perspective, it becomes crucial to refer to the Colombian context, in which the OPT decided to use benchmarks to identify victims of HR violations.[xiv] In the opinion of Alejandra Muñoz, author of the article referred, these benchmarks could be a useful tool to ‘give a more central role to victims’ rights to the truth, participation’ among others.
This may mean a significative modification in the approach, given that -according to the article-, families of the victims were not allowed to participate in the hearings nor to play a preponderant role.[xv]
The article deepens on how shall be the system formulated, orienting it to the victims, and stating that an adequate formulation to guarantee the rights of victims, potentially encouraging these and other victims to collaborate, seeking together the Truth, which is one of the foundational aims of the Special Jurisdiction for Peace.[xvi] If Colombia succeeds in its attempt to develop a structured victim-centred system rather than excluding them, it would mean a change of paradigm that may even inspire other legal systems. Allowing victims to take part in the legal processes, and being able to access trustful declarations of victims while seeking the Truth, would be impactful initiatives against impunity in the Latin American region.
Conclusions
Three main examples of Latin America have been reviewed: Uruguay, Argentina and Colombia. The first two, under the authorized voices of Sikkink and Lessa, while Alejandra Muñiz detailed the Colombian
The selection of the cases was not casual, as the three countries shared historical, political, and social contexts. Perhaps Colombia is the furthest, which may also explain how these initiatives of the countries have been shaping and modifying the paradigm putting victims in the center. Argentina and Uruguay may seem more similar, but even they have important differences founded in their own idiosyncrasies and historical backgrounds, that led them to current contexts.
The guiding question aimed to be answered derived from relative matters, such as the concept of impunity. And these are closely related, as in – how literature has demonstrated – the failure to acknowledge victims supports impunity. In the case of Uruguay, the inadequate judgment provides what may be called a ‘fake feeling’ of Justice because while the perpetrators were in some cases imprisoned, they were not for the reasons or motives that transform victims into HR victims. This allows a narrative of the ‘non-happening’, if societies do not acknowledge HR violations as what they are, there is a risk of being unable to avoid them in the future.
And impunity remains, as the perpetrators are not addressed as HR perpetrators. This is not demonize people in particular, but because – in terms of the IACtHR – the correct framing of the facts and identification of liability constitutes a reparation itself.
In those terms, it would seem adequate to affirm that impunity in Uruguay and the region remains, from a legal but also a substantial perspective.
[i] Hereinafter: HR
[ii] Ellen Lutz & Kathryn Sikkink, The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America International Human Rights Law in Practice, 2 Chi. J. Int’l L. 1 (2001).
[iii] Francesca Lessa, The Condor Trials: Transnational Repression and Human Rights in South America (2022).
[iv] Leigh A. Payne, Francesca Lessa & Gabriel Pereira, Overcoming Barriers to Justice in the Age of Human Rights Accountability, 37 hrq 728 (2015).
[v] Ibid. P. 137
[vi] Inter-American Court of Human Rights. Gelman vs. Uruguay. 24th. Feb 2011.
[vii] Victim under the old paradigm, in which families of the disappeared person were not considered victims themselves. See Inter-American Court of Human Rights. Radilla Pacheco Vs. México. 23rd. November 2009
[viii] María Clara Galvis Patiño, The Rights of the Victims of Enforced Disappearance Do Not Have an Expiration Date, Opinio Juris (Jul. 7, 2020), (last visited Jan 25, 2025).
[ix] Ibid. note V
[x] Ibid. note III. See also Par Engstrom and Gabriel Pereira ´From Amnesty to Accountability The Ebb and Flow in the Search for Justice in Argentina´, in Uruguay´in Lessa F, Payne LA, eds. Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives. Cambridge University Press; 2012.
[xii] Francesca Lessa, The Condor Trials: Transnational Repression and Human Rights in South America (2022).
[xiii] Par Engstrom and Gabriel Pereira ´From Amnesty to Accountability The Ebb and Flow in the Search for Justice in Argentina´, in Uruguay´ in Lessa F, Payne LA, eds. Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives. Cambridge University Press; 2012.
[xiv] Alejandra Muñoz, The Use of Benchmarks in the Colombia Situation: An Opportunity for a Victim-Oriented Approach to ICC Complementarity, Opinio Juris (Jul. 2, 2020), (last visited Jan 25, 2025).
[xv] Ibid.
[xvi] Ibid.