Judicial Independence and Human Rights in Latin America. Violations, Politics, and Prosecution by Elin Skaar (review)

Why do some countries decide to come to terms with their authoritarian past, prosecuting state officials for gross human rights violations, while others pull their punches? Why do trials take place in the aftermath of the transition to democracy in some places, but only after decades in others? This book argues that an active role of courts and judges is key to explaining the upsurge in trials. In particular, reforms that increment judicial independence provide judges with political space and legal “toolboxes” for conducting action in human rights cases. Elin Skaar’s timely book offers nuanced arguments, detailed data on the cases of Argentina, Chile and Uruguay, and a good number of insightful analyses from a renowned socio-legal scholar with vast experience on Latin America and Africa.

Skaar underscores that transitional justice processes are complex and full of unintended consequences. As such processes proceed, there are political, economic, and social costs that are likely to undermine the will to prosecute human rights violators. And the benefits of carrying out trials are sometimes diffuse even for the victims and their relatives. In other words, prosecuting the human rights violations of a departed regime is not at all an easy task: costs are high and to a considerable degree fixed, while benefits are sometimes unclear or very difficult to obtain. However, as the book argues, when judges become independent it is more likely that, as empowered actors, they will get directly involved in prosecuting past violations. Of course, Skaar discusses at length other relevant variables, such as the intensity of the demand for justice or the government’s preferences, that under certain conditions reinforce the proposed positive association between judicial reforms and trials for past human rights violations.

The book´s focus on courts, judges, and trials puts a spotlight on the interesting legal and political problems of coming to terms with the past. The former involve questions concerning the retroactivity of criminal laws, statutes of limitations, the legal and constitutional value of amnesties, and the objective and limits of punishment. The political problems involve the capability and willingness of judges and prosecutors to carry out the trials, and then the fascinating issue of compliance with judicial decisions. In her discussion of Argentina, Chile, and Uruguay, Skaar elegantly discusses these problems at length with an engaging prose and a host of examples involving the relations between judges, politicians, the victims, and the society at large. The relations between these actors is especially interesting, in my view, in the case of Uruguay, which is also a challenging case for the book’s argument.

While the Skaar’s central hypothesis is clearly stated, the evidence she gathers to put her theory to a definitive test is less convincing. One concern is that the forces that are bringing about judicial reforms are also causing the upsurge in trials—the endogenity problem, in political science jargon. Another issue that requires more elaboration is the connection between formal changes that increase judges’ independence and the judges’ de facto behavior. Finally, in the book there is perhaps too much optimism about the benefits of trials for past human rights violations. Skaar argues that whereas truth commissions bring only truth, trials bring both truth and justice. However, because of the aforementioned legal and political problems associated with those trials, the outcome might also be disappointing. As a former East German victim said after a transitional justice trial: “We wanted justice, but we got the rule of law.”

These weaknesses notwithstanding, Skaar’s book is a must read. Perhaps the most important contribution of the book is the clear message that judicial independence is not an end in itself, but rather a means to promote better societies and better governments. This is often forgotten in many studies on judicial independence. This book forcefully reminds us that independent and powerful judges are critical to the promotion and maintenance of many aspects...