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978-1-107-14523-8 Shifting Legal Visions

Ezequiel A. González-Ocantos
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SH I F T I N G L E G A L V I SIO N S

What explains the success of criminal prosecutions against former Latin

American oicials accused of human rights violations? Why did some judi-
ciaries evolve from unresponsive bureaucracies into protectors of victim
rights? Using a theory of judicial action inspired by sociological institu-
tionalism, this book argues that this was the result of deep transformations
in the legal preferences of judges and prosecutors. Judicial actors discarded
long-standing positivist legal criteria, historically protective of conserva-
tive interests, and embraced doctrines grounded in international human
rights law, which made possible innovative readings of constitutions and
criminal codes. Litigants were responsible for this shit in legal visions
by activating informal mechanisms of ideational change and providing
the skills necessary to deal with complex and unusual cases. hrough an
in-depth exploration of the interactions among judges, prosecutors, and
human rights lawyers in three countries, the book asks how changing
ideas about the law and standards of adjudication condition the exercise
of judicial power.

Ezequiel A. González-Ocantos is Associate Professor in the Dep-

artment of Politics and International Relations and Professorial Fellow
of Nuield College, at the University of Oxford. He received his B.A. in
Social and Political Sciences from the University of Cambridge in 2005,
and his Ph.D. in Political Science from the University of Notre Dame in
2012. González-Ocantos won the American Political Science Association’s
Edward S. Corwin Award for the best doctoral dissertation in the ield of
public law. His work has appeared in the American Journal of Political
Science, Comparative Politics, Comparative Political Studies, and he
International Journal of Human Rights.

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Cambridge Studies in Law and Society

Cambridge Studies in Law and Society aims to publish the best scholarly work on legal
discourse and practice in its social and institutional contexts, combining theoretical
insights and empirical research.
he ields that it covers are: studies of law in action; the sociology of law; the anthro-
pology of law; cultural studies of law, including the role of legal discourses in social
formations; law and economics; law and politics; and studies of governance. he books
consider all forms of legal discourse across societies, rather than being limited to lawyers’
discourses alone.
he series editors come from a range of disciplines: academic law; socio-legal studies;
sociology; and anthropology. All have been actively involved in teaching and writing
about law in context.

Series editors
Chris Arup Monash University, Victoria
Sally Engle Merry New York University
Susan Silbey Massachusetts Institute of Technology

A list of books in the series can be found at the back of this book.

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978-1-107-14523-8 Shifting Legal Visions
Ezequiel A. González-Ocantos
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SH I F T I N G L E G A L V I SIO N S
Judicial Change and Human Rights Trials
in Latin America

E Z E QU I E L A . G O N Z Á L E Z - O C A N T O S
University of Oxford

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Cambridge University Press
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Ezequiel A. González-Ocantos
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32 Avenue of the Americas, New York NY 10013

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781107145238
© Ezequiel A. González-Ocantos 2016
his publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2016
A catalog record for this publication is available from the British Library.
Library of Congress Cataloging in Publication Data
Names: González-Ocantos, Ezequiel A., author.
Title: Shiting legal visions : judicial change and human rights trials in
Latin America / Ezequiel A. González-Ocantos.
Description: New York : Cambridge University Press, 2016. |
Includes bibliographical references and index.
Identiiers: LCCN 2016010902 | ISBN 9781107145238 (hardback)
Subjects: Comparative Politics | LCSH: Human rights – Latin America. |
Criminal justice, Administration of – Latin America. | Due process of law –
Latin America. | Court congestion and delay – Latin America. | Trials – Latin America.
Classiication: LCC KG574.G67 2016 | DDC 345.8/02322–dc23
LC record available at http://lccn.loc.gov/2016010902
ISBN 978-1-107-14523-8 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of URLs
for external or third-party Internet Web sites referred to in this publication and does not
guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

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Para mamá y la abuela Esther, en eterno agradecimiento.

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Ezequiel A. González-Ocantos
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Law is conservative in the same way in which language is

conservative. . . . It seeks to assimilate everything that happens to that
which has already happened. . . . hus the lawyer’s virtually instinctive
intellectual response when he is confronted with a situation is to look
for the respects in which that situation is like something that is familiar
and that has a place within the realm of the understood.
Richard Wasserstorm (1968)

A rigorous science of the law is distinguished from what is normally

called jurisprudence in that the former takes the latter as its object
of study. In doing so, it immediately frees itself from the dominant
jurisprudential debate concerning law, between formalism, which
asserts the absolute autonomy of the juridical form in relation to
the social world, and instrumentalism, which conceives of law as a
relection, or a tool in the service of dominant groups.
Pierre Bourdieu (1984)

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CONTENTS

List of Figures page viii

List of Tables ix
Acknowledgments xi

1. From Unresponsive to Responsive Judiciaries 1

2. Legal Preferences and Strategic Litigation: A heory
of Judicial Change 27
3. Argentina: Pedagogical Interventions and Replacement
Strategies in the Struggle for Human Rights 71
4. Peru: Pedagogical Interventions and Human Rights
Trials in Unfriendly Territory 141
5. Mexico: An Untamed Judiciary and the Failure of
Criminal Prosecutions 206
6. Comparative Perspectives on the Problem of Legal
Preferences 269

Bibliography 291
Index 315

vii

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FIGURES

1.1. Number of Antiimpunity Rulings Handed Down by Latin American

High Courts (1980–2010) page 3
2.1. Explaining the Success of Human Rights Prosecutions in Latin America 69
3.1. Trial Statistics (2007–2014) 114
3.2. Number of Completed Oral Trials by Year (2006–2014) 115
3.3. Decisions on Preventive Imprisonments by the Court of Cassation
before and ater the President’s hreat (2007–2010) 120
3.4. Decisions on Preventive Imprisonments by the Court of Cassation
before and ater the Impeachment hreat (2007–2010) 120
4.1. Progress of Cases Filed by the Truth and Reconciliation Commission
and the Oice of the Ombudsman (2004–2008) 148
4.2. Conidence in the Armed Forces (1991–2009) 162
4.3. Untenured Judges in the Peruvian Judiciary by Year (%) 168
4.4. Resources Allocated to the Judicial Branch (1980–2000) 175
4.5. Organizations Providing Training Courses for Prosecutors 190
4.6. Topics Suggested by Judges and Prosecutors for Future Seminars (2009) 195
5.1. Number of Jurisprudential Guidelines for the Interpretation of
Constitutional Articles 1–29 (1917–2005) 257
6.1. Number of Citations of Inter-American Court of Human Rights
Rulings in the Jurisprudence of Twelve Latin American
High Courts (1994–2012) 276

viii

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TA B L E S

3.1. Indictments Filed in FOTs (December 2010) page 122

3.2. Defendants under Arrest by Prison Type (2008) 125
3.3. Judicial Actors Denounced by Human Rights Organizations 135
4.1. Rulings in Oral Trials Held at the National Criminal Court (2006–2014) 151
4.2. Interlocutory Appeals Filed by Defendants (2004–2008) 158
4.3. Prosecutors’ Perceptions of the Obstacles Faced during Investigations 163
4.4. Prosecutors’ Assessment of Litigants’ Pedagogical Interventions 181
5.1. Indictments in Cases of Abuse of Authority, Torture, Human Traicking,
and Unlawful Deprivation of Liberty (2005–2010) 232
5.2. Indictments in Homicide Cases by State (2006–2009) 233

ix

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ACKNOWLEDGMENTS

his book grew out of a conversation I had as a graduate student with my

dear friend Ximena Medellín, during a cofee break outside the Hesburgh
Library at the University of Notre Dame. It is certainly not common for
a lawyer and a political scientist to be interested in the same questions,
but there we were, braving the cold, cigarette in hand, equally puzzled by
a phenomenon that we had both recently come across: Judges in Latin
American countries with diferent histories of violence and state repres-
sion were beginning to respond in very similar ways to victims’ demands
for criminal accountability. In the process, judicial actors were recon-
iguring the region’s legal tradition by making an unprecedented use of
international human rights law. Looking back at that conversation, it is
remarkable how a few minutes came to shape my long-term obsessions,
revolutionize my social networks, and lead me to incur many debts. Let
me begin repaying some of them.
During my time at Notre Dame, Daniel Brinks, Michael Coppedge,
Frances Hagopian, Scott Mainwaring, Monika Nalepa, David Nickerson,
and Guillermo O’Donnell were wonderful advisers. hey all cared deeply
about my intellectual growth, well-being, and professional success. I will
always be grateful for the time that they shared with me, and for their
words of wisdom along the way. When this book was still an unwritten
dissertation my graduate school friends were also an invaluable source of
support. Juan Abarracín, Sandra Botero, Rodrigo Castro, Laura Gamboa,
Craig García, Lucrecia García Iommi, Víctor Hernández, Chad Kiewiet
de Jonge, Esteban Manteca, Ximena Medellín, Carlos Meléndez, Javier
Osorio, and Nara Pavao all ofered constructive feedback on this and other
projects, and generally made my time in South Bend unforgettable.
he Center for Research and Teaching in Economics (CIDE) in Mexico
City ofered the perfect environment to begin the challenging process
of turning the dissertation into a book. I was lucky to have the opportu-
nity to start my professional journey in such a supportive and stimulating

xi

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xii Acknowledgments

community. I completed the manuscript ater I moved to Oxford, where

my colleagues in the Department of Politics and International Relations
and Nuield College were incredibly welcoming. Ben Ansell, Nancy
Bermeo, Des King, Leigh Payne, and Laurence Whitehead deserve special
thanks for guiding me through the intricacies of the publishing world.
Over the years I beneited immensely from the feedback I received at sem-
inars at the Due Process of Law Foundation in Washington, D.C., FLACSO
Mexico, the University of Chicago, the University of Wisconsin-Madison,
the University of Buenos Aires, and the University Torcuato Di Tella. Karina
Ansolabehere, Sandra Botero, Eduardo Dargent, Matthew Ingram, Ximena
Medellín, Paula Muñoz, Virginia Oliveros, Julio Ríos Figueroa, and Mariela
Szwarcberg read parts of the manuscript, sometimes more than once, and
gave me thoughtful and constructive comments.
Funding for this project was provided by the Kellogg Institute for
International Studies at the University of Notre Dame. Doing ieldwork
can be a frustrating and confusing experience, but I was fortunate to come
across generous and efective gatekeepers, including Mariclaire Acosta,
Milagros Campos, Martín Costanzo, Eduardo Dargent, Sol Déboli, María
Amparo Hernández, Juan Pablo Iriarte, Francesca Lessa, Vladimir León,
Ximena Medellín, Carlos Meléndez, Paula Muñoz, Leigh Payne, Xisca
Pou, José Carlos Requena, Julio Ríos Figueroa, Juan Pedro Rosolén, Fabián
Sánchez, Milagros Sanz, Lucrecia Servini, Jessica Sircovich, María Sirvent,
Catalina Smulovitz, Karina Tchrian, and Sofía Tiscornia. I am also grateful
to everyone at the Instituto de Democracia y Derechos Humanos of the
Pontiicia Universidad Católica del Perú, especially to Víctor Quinteros,
José Alejandro Godoy, and Orieta Pérez Barreto, who gave me the institu-
tional support I needed to iniltrate the Peruvian judiciary. Vanesa Baldino,
Itzel de Haro, Marco de la O, Tomás Quesada, and Esteban Valle Riestra
were excellent research assistants both in the ield and back in the oice.
A special thank you goes to the Argentine, Brazilian, Peruvian, Mexican,
and Uruguayan judges, prosecutors, and clerks who made room for me
in their incredibly busy schedules. Ater learning about the conditions in
which some of them work, and the pressures to which they are oten sub-
ject, I cannot but express admiration for what they do.
At Cambridge University Press John Berger was immensely support-
ive of this project from the very start. Helen Francis and Susan hornton
provided helpful editorial assistance. he comments I received from two
anonymous reviewers were simply outstanding, and greatly improved the
quality of the inal product. At Oxford, Fay Clarke and Claire Peacock did
a wonderful job proofreading the entire manuscript.

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Acknowledgments xiii

Some of the material in Chapter 3 was originally published in “Persuade

hem or Oust hem: Crating Judicial Change and Transitional Justice in
Argentina,” in Comparative Politics, and is reprinted here with kind per-
mission from the editors.
I met Matt when we were both struggling to inish our irst books.
He revolutionized my world, oten guiding chaos into order, and gener-
ally making me laugh. I am very lucky to have him by my side, and hope
this is just the irst of many dedications. My brother Pedro and the two
amazing women who raised me, my grandmother Esther and my mom,
María Ester, are the three most important people in my life. My mother
deserves more than just a few lines of acknowledgment. Her courage and
self-respect will always be an inspiration. For my family, letting me go at
the age of eighteen, when I decided to embark on a still ongoing academic
adventure that took me away from Argentina, irst to the University of
Cambridge, then to the United States, and then back to Britain via Mexico,
was indeed diicult. It was especially tough for my aging grandmother,
whose eyes in every farewell concealed the doubt of whether that would
be the last one. But their incommensurable love led them to support me
every step of the way. I will be eternally grateful because without their
encouragement it would have been much harder to pursue my dreams.
For these and many other reasons, this book is dedicated to the memory
of my grandmother, who passed away when I began working on this proj-
ect, and to my mother, who always has my back.

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From Unresponsive to Responsive Judiciaries

he dictatorships and armed conlicts that ravaged Latin America in the

second half of the twentieth century led to the torture, exile, murder,
and forced disappearance of thousands of individuals. Victims’ relatives,
in many cases unaware of the fate of their loved ones, knocked on the
doors of military barracks, iled habeas corpus petitions, risked their lives
denouncing these crimes in the press, and endlessly navigated the com-
plex world of courts in order to seek punishment for those responsible.
he quest for truth and justice evolved into a tortuous and protracted bat-
tle, but these eforts sometimes paid of.
In July 1992, military oicers raided a university outside Peru’s capi-
tal city in one of their many attempts to disband illegal armed organiza-
tions. Gisela Ortíz never again saw her brother, who thus became one of
the seventy thousand victims of the internal armed conlict. he authori-
ties turned a blind eye to her requests for information, to the point that
they even denied her brother’s existence. Luis Enrique had not only dis-
appeared; for the Peruvian state he had never been born. In April 2009,
seventeen years later, the Peruvian Supreme Court found former President
Fujimori responsible for mounting a repressive apparatus that carried out
this and other crimes. Similarly, ater Peru’s democratic transition in 2000
dozens of other high-ranking military and police commanders were pros-
ecuted and punished in a wave of trials that is still ongoing. According to
Gisela, courts “made oicial a series of facts that everyone denied. Before
that day I felt like a mad lady with a story that no one believed in. he
judiciary inally validated our story. . . . Today we can declare mission
accomplished.”1
In April 2011, former police oicer Luis Patti was found guilty of plan-
ning and executing the kidnapping and forced disappearance of several
activists during Argentina’s last military dictatorship. Until his arrest,
Patti beneited from the amnesty laws passed in the late 1980s, and, as a

1
Interview, Lima, 27 April 2010.

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2 From Unresponsive to Responsive Judiciaries

member of parliament, used his congressional immunity to escape pros-

ecution. Ater the judges announced their decision, Manuel Gonçalves,
the son of a victim, appeared outside the courtroom and declared: “his
is the product of many eforts and struggles. . . . Our objective was to get
to the day in which a court handed down this ruling. Patti . . . used our
country’s institutions to preserve his impunity.”2 his ruling is just one of
more than four hundred prison sentences that have been handed down
since the mid-2000s in what constitutes an unprecedented wave of pros-
ecutions and trials.
he situation in Mexico is very diferent. Tita Radilla still sheds tears as
she recalls the 1974 morning when army oicers abducted her father, an
activist from the state of Guerrero. She never heard from him again. For
almost three decades Tita has been part of an organization that represents
hundreds of victims of the dirty war, assisting them in their eforts to give
testimony of the forced disappearances, torture, and sexual assaults perpe-
trated by the armed forces during the 1970s. In 2005, a special prosecutor
appointed by President Fox iled her father’s case in the federal courts. he
case moved back and forth between civilian and military jurisdictions, but
like all the other cases investigated by the special prosecutor it was eventu-
ally shut down. As she put it, “We have no faith in state institutions. here
is a total lack of will to investigate what happened to our victims.”3 Ater
forty years, Tita and many others are still waiting for justice.
Despite the enduring sufering of people like Tita, over the last decade
and a half, judges and prosecutors across Latin America have become
central actors in eforts at strengthening democracy by punishing the
brutality of past regimes (Olsen et al.; Sikkink 2011). Figure 1.1 shows
the explosion of antiimpunity rulings handed down by Supreme and
Constitutional Courts ater the year 2000, which paved the way for justice
by overturning amnesty laws and pardons, declaring the nonapplicability
of statutory limitations, recognizing victims’ right to truth, or limiting the
scope of military jurisdiction. As a result of these decisions, which relied
heavily on international human rights law, courts throughout the region
began to investigate – and in some notable cases, prosecute and punish –
state agents responsible for human rights violations, thus putting an end
to decades of judicial acquiescence. he magnitude of this shit in juris-
prudential trends is remarkable not only because it took place years ater
the onset of the so-called third wave of democratization, but also because

2
Página 12, 15 April 2011.
3
Tita Radilla, Interview, Mexico City, 23 July 2010.

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From Unresponsive to Responsive Judiciaries 3

120

100
No. of Decisions

80

60

40

20

0
1980s 1990s 2000s

Figure 1.1. Number of Antiimpunity Rulings Handed Down by Latin American High
Courts (1980–2010).
Source: DPLF (2010) and author’s data set. he igure includes rulings on cases of
human rights violations by Supreme and Constitutional Courts. he rulings use inter-
national human rights law and humanitarian law to limit the application of amnesty
laws or declare their unconstitutionality; modify procedural and substantive aspects of
criminal legislation to meet international standards; recognize victims’ right to truth;
and limit the jurisdiction of military courts. he data set was constructed using online
public information systems, consulting with country experts, and reading the relevant
legal literature. I am grateful to Ximena Medellín for facilitating some of the rulings.

prior to this explosion of judicial activism Latin American democracies

put in place seemingly impenetrable impunity regimes.
During the 1980s democratic transition, Argentina took the irst step
in the direction of transitional justice by creating a truth commission and
iling criminal charges against the leaders of the military juntas (Nino
1996). As a result of the civil-military tensions engendered by these initia-
tives, in the late 1980s and early 1990s there were important backlashes
against transitional justice in the form of amnesty laws, presidential par-
dons, and the termination of all criminal procedures against perpetrators
(Pion Berlin 1994, 1995, 1997; Acuña and Smulovitz 1997). Following the
Argentine example, sixteen Latin American countries adopted amnesty
laws to prevent criminal investigations that could potentially destabilize
the political system (Sikkink and Walling 2007).4 Moreover, as the years

4
Some, like the one passed by the Peruvian congress in 1995, were blanket amnesties. Others
contemplated exceptions. In Argentina the crimes of illegal abduction and traicking of
babies born in detention centers were excluded. In Guatemala, crimes against humanity
were also excluded (Cassel 1996; Lessa and Payne 2012). For an analysis of amnesties around
the world see Mallinder (2009).

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4 From Unresponsive to Responsive Judiciaries

passed, statutes of limitations began to run out for most of the crimes in
question, barring criminal prosecutions. Consequently, even though the
policies of transitional justice that had taken efect immediately ater the
waning of authoritarian regimes showed some degree of cross-country
variation, by the mid-1990s there was a regionwide convergence toward
impunity (Sikkink 2005).
As victims and their lawyers insisted on seeking redress for the viola-
tions in domestic and international courts, the institutionalization and
legalization of impunity gave rise to heated legal debates (Teitel 1997;
Lessa and Payne 2012). On one side were those who argued that inter-
national customary law, treaties signed and ratiied by Latin American
states before and ater these violent episodes, and the jurisprudence of
the Inter-American Court of Human Rights demanded that states treat
human rights violations as serious international crimes subject to special
judicial rules and procedures. According to this camp, when domestic
actors invoke statutes of limitations or apply amnesties, they incur a viola-
tion of states’ international duty to investigate and punish crimes against
humanity. On the other side were those inluenced by formalistic legal
philosophies who argued that the passage of amnesty laws or pardons was
a sovereign prerogative of presidents and congresses, and therefore courts
had no place in questioning them. Moreover, invoking unwritten princi-
ples of customary international law or treaties signed ater the perpetra-
tion of the crimes in order to apply special legal standards to these cases
or deine the crimes using extemporaneous criminal deinitions would
amount to a grave violation of due process.
he formalistic position was for decades the dominant one in Latin
American judicial branches, generally leading courts to behave more
as arbiters of procedure than as architects of fundamental rights (López
Medina 2004; Couso 2010; Guzmán Dálbora 2010; Pásara 2010). Today the
situation is very diferent, as judicial actors are more predisposed to make
creative readings of the legal framework that aford citizens greater protec-
tions vis-à-vis the state (Nunes 2010; Rodríguez Garavito 2009). his is
clearly seen in cases of organized state repression, in which customary and
positive international law are recurrently invoked to deine the crimes in
ways that capture their historical signiicance, declare the unconstitution-
ality of amnesties and pardons, and limit the application of statutes of limi-
tations, thus expanding the sphere of victims’ rights. Moreover, innovative
theories of criminal liability and investigative protocols irst developed to
address international crimes have been applied domestically to ascribe
criminal responsibility to direct and indirect perpetrators (Roht-Arriaza

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From Unresponsive to Responsive Judiciaries 5

2015). Beginning in the late 1990s and especially in the 2000s, some Latin
American judiciaries thus became a beacon of progress in the area of tran-
sitional justice.
Why did some judicial corporations evolve from unresponsive bureau-
cracies into suitable arenas for the advancement of rights claims, while
others did not? In this book I compare the surge in prosecutions and
prison sentences in Argentina and Peru with the failure of investigations
and judicial proceedings in Mexico. I study the process that led judges and
prosecutors in some countries to leave behind a formalistic legal ortho-
doxy strongly inluenced by positivism, and embrace a new legal world-
view grounded in the values of international human rights law. I show that
this shit in the judicial imagination away from formalistic instincts and
a narrow focus on domestic law constituted a necessary condition for the
explosion of trials and convictions in the 2000s. In particular, my argument
indicates that these bold and unprecedented jurisprudential steps became
possible ater litigants activated informal mechanisms of legal-ideational
change inside judiciaries, and enhanced the technical capabilities of judges
and prosecutors. hese transformations in the norms, knowledge, and
routines that underpin judicial decision making triggered efective judicial
action in cases that were complex and idiosyncratic. By manufacturing a
new logic of appropriate legal interpretation, litigants invested judges and
prosecutors in investigations that required highly specialized knowledge
and involved an unusual degree of juridical experimentation and numer-
ous professional risks. Changes in legal preferences were also instrumental
in motivating resistance against the pressures exerted by powerful presi-
dents and soldiers adamantly opposed to the trials. In the absence of these
shits in legal visions, the impact of projustice pressures by local politi-
cians, international institutions, and foreign governments was limited.
By exploring the microdynamics of norm and capabilities difusion
during the interactions among judges, prosecutors, and human rights law-
yers, this book engages a series of theoretical questions about the nature
of judicial power. In particular, I analyze the role that ideas about the law
and received standards of legal praxis have in constraining or empowering
judicial actors to become involved in thorny political territory. I emphasize
that in order to understand changes in patterns of judicial decision making
it is important to look beyond the degrees of freedom for action aforded
by the surrounding political environment. We ought to recognize the role
of internal norms of conduct and legal preferences, which can act as cata-
lysts of bold and assertive judicial action in deiance of external political
constraints. In so doing, the following pages explore the conditions under

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6 From Unresponsive to Responsive Judiciaries

which judicial branches acquire the technical capabilities and the political
will to become powerful and efective players in salient political struggles.

he Argument in Brief
Understanding how judicial actors think about their professional duties
and how they perceive the solutions available for the cases they receive is
crucial to explain the wave of trials and prison sentences observed in some
Latin American countries. To this end, this book uses insights derived
from sociological institutionalism to develop a theory that emphasizes
the bureaucratically embedded nature of judicial decision making (Hall
and Taylor 1996). I argue that judicial behavior is processed within a
complex organizational environment that instills among its members
profession-speciic norms and identities. hese in turn lead to jurispruden-
tial outcomes that relect the institutionalization of “sticky” ideas about the
law in courts’ routine practices (Smith 2008; Clayton and Gillman 1999;
Hilbink 2007a; Couso 2010). hese ideas or legal preferences bias judicial
actors’ knowledge of the legal corpus at their disposal, trace the landscape
of values underpinning their decisions, and deine their understanding of
their role in the political system, motivating them to take a more or less
critical approach to decisions made by politicians. Qua norms governing
professional praxis, legal preferences are accompanied by expectations
about acceptable courses of action within the organization, and stable
behavioral patterns (e.g., recurrent use of certain precedents, doctrines,
evidentiary standards). Responses to external requests, threats, and incen-
tives are iltered through this thick cultural lens, leading behavior to result
less from individual judges’ opportunistic calculations regarding speciic
cases than from a shared understanding of what is the appropriate thing to
do as members of the bench (March and Olsen 1984).
When confronted with the question of whether or not to investigate and
prosecute human rights violations perpetrated in the distant past, most
Latin American judges and prosecutors had to grapple with legal argu-
ments that were out of sync with established legal preferences. For exam-
ple, instead of dismissing these cases because of the expiration of statutes
of limitations or the presence of laws barring prosecutions, as they would
have normally done, judicial actors were asked to challenge the legal status
quo by invoking international norms. Most of them were unfamiliar with
these norms, as they had never featured prominently in judges and pros-
ecutors’ decision making routines. To complicate matters further, once the
cases were opened, judicial actors were put in charge of unprecedented

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The Argument in Brief 7

investigations. Although the bureaucratic instinct was to proceed as in

regular criminal cases, many soon discovered the inadequacies of standard
techniques to gather and evaluate the evidence. In the absence of knowl-
edge about the whereabouts of victims or lacking access to documentation
certifying the existence of clandestine repressive structures, judicial actors
had to ind the motivation to look for innovative ways to obtain informa-
tion, weaving circumstantial evidence into convincing stories of individ-
ual criminal responsibility.
Overcoming these challenges required breaking with deeply ingrained
institutional inertias. his was no small feat. Gaps in legal knowledge had
to be illed and templates of juridical reasoning modiied. In addition,
judicial actors had to become invested in these cases in order to be willing
to experiment with unorthodox legal arguments, go an extra mile when
gathering evidence against soldiers and politicians, and risk their personal
and professional integrity when handing down condemnatory rulings. In
other words, the professional lens through which they perceived both the
legal possibilities aforded by these cases and their institutional respon-
sibility in transitional justice had to change. To the extent that this hap-
pened, judges and prosecutors became more willing and able to see viable
legal pathways for truth and justice. his process involved the deinstitu-
tionalization of historically dominant positivist/formalistic legal cultures,
jealous of legal sovereignty and protective of conservative interests, and
the entrenchment of a progressive juridical vision committed to the val-
ues of international human rights law. In addition to reshaping judicial
actors’ cognitive maps and awareness of certain enabling legal doctrines
and instruments, this transformation modiied their understanding of
their professional mission as it relates to the ways they ought to conduct
their duties and interpret the law in human rights cases.
Why did judges and prosecutors in some countries become committed
to the cause of truth and justice? I argue that where human rights activists
acknowledged the importance of traditional legal preferences as a clear
blockage on the road to justice, and sought to tame the judiciary by turn-
ing themselves into agents of ideational change and capabilities difusion,
they managed to put criminals in jail. By taking seriously how judges and
prosecutors think about these cases qua professionals of the law, litigants
were able to design efective tactics of legal contention. Denouncing impu-
nity in international forums, litigating abroad, or marching on the streets
to put pressure on politicians would not suice. hey understood the
importance of putting together professionalized teams of lawyers capable
of introducing domestic judicial actors to new paradigms of rights-based

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8 From Unresponsive to Responsive Judiciaries

jurisprudence, and teaching them how to pursue the goals of truth and jus-
tice legitimately within the conventions and parameters of the legal ield.
Savvy litigants realized they faced three types of judicial actors – com-
mitted, indiferent, and recalcitrant – leading them to deploy two main
strategies in order to bring about this necessary ideational transformation,
and galvanize a critical mass of judicial actors in favor of their cause. First,
committed and indiferent judges and prosecutors were targeted with ped-
agogical interventions. hese included the organization of seminars for
judicial personnel, establishment of informal contacts before and during
critical stages of the litigation process, and the circulation of academic
documents in court. Litigants thus taught members of the judicial com-
munity complex and oten unknown international juridical doctrines
and protocols. In the process, NGOs disrupted bureaucratic inertia and
manufactured a plausible legal framework for judicial actors to justify
the appropriateness of their actions. he ideas circulated in these venues
had a technical component; i.e., they served as roadmaps for action. But
they also had a normative one, because they legitimized unusual courses
of action. Second, activists sought the replacement of recalcitrant judicial
actors who staunchly resisted changes in patterns of legal interpretation, as
a result of their unwavering commitment to positivism or their complic-
ity with the previous regime. By deploying naming and shaming tactics
in order to force resignations, and by promoting impeachments, human
rights litigants deepened the shit in the legal and political allegiances of
the judiciary.
Domestic judicial strategies operated primarily as a permissive cause.
Litigants fundamentally altered the scope of conceivable outcomes, mak-
ing possible certain legal solutions that in the absence of these interven-
tions were literally “unthinkable.” If doctrinal positions, technical skills,
and professional commitments had remained unchanged, judicial actors
would not have been able or willing to read constitutions or criminal
codes in light of the greater protections aforded to victims by the inter-
national legal corpus. Moreover, these strategies marshalled a new logic
of behavioral appropriateness within the legal ield that catalyzed judicial
collective action when the political and military establishments attacked
pro–transitional justice outcomes. When litigants succeeded in institu-
tionalizing a new set of standard practices, rekindling a shared vision of
the role of the judiciary in processing rights claims, judicial actors incor-
porated a new professional mandate and set of values that they were willing
to defend as a corporation. For example, presidents or soldiers who threat-
ened judges or tried to contain transitional justice by invoking certain due

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Deepening Our Understanding of PROSECUTIONS 9

process norms encountered resistance when judicial actors found it pro-

fessionally unacceptable to ignore the demands of international law.
Given what is generally at stake in judicial dockets, the reproduction or
transformation of legal preferences is an eminently political process that
involves a variety of social forces that struggle to entrench within judicial
bureaucracies legal ideas compatible with their normative commitments
(DiMaggio and Powell 1991; Gillman 1993, 2002, 2008). he judicial bat-
tles at the core of transitional justice processes in Latin America, which
pitted human rights NGOs against the military and its allies, exemplify
these attempts to preserve and transform dominant legal visions in order
to promote political causes. he ideas and legal arguments espoused
by both groups either constrained or expanded the avenues to justice.
Precisely because judiciaries were the epicenter of colonization strategies
by both camps, the theory I propose indicates that litigants’ chances of
success increased when (a) they deployed strategies of institutional change
before their rivals; (b) pedagogical interventions were framed in such a
way that they were perceived by judicial actors as authoritative and elic-
ited feelings of cognitive discomfort; (c) litigants’ eforts were systematic,
across both jurisdictions and legal issue areas; and (d) litigants were able
to combine persuasion and replacement strategies to engineer widespread
and enduring value changes in the judiciary.
In sum, ambitious programs of criminal prosecutions require deep
institutional transformations within judicial branches, which involve both
legal learning and changes in professional values. In turn, these changes
depend on external inputs that actively expand the cognitive maps of
judges and prosecutors, shake up their problem-solving predispositions,
and contest control over their normative commitments. Human rights
activists and their lawyers can manufacture this exogenous shock, crat-
ing a new judicial culture through pedagogical and replacement strategies.

Deepening Our Understanding of Human Rights

Prosecutions in Latin America
his book tells the story of how human rights litigants removed impor-
tant blockages inside the judiciary to achieve their goals. he argument
zooms in on how legal preferences and their remodeling by activists shape
judicial responses to state repression, and in so doing deepens our under-
standing of transitional justice processes in three ways.
First, the following pages shed light on the relationship between the
success of litigation battles and the strength of political/military veto

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10 From Unresponsive to Responsive Judiciaries

players. It is oten argued that these elites have the upper hand in deciding
the fate of human rights prosecutions (Karl and Schmitter 1991; Zalaquett
1992; Pion-Berlin 1995, 1997). For example, according to Huntington
(1991), the balance of power between the prodemocracy coalition and the
authoritarian coalition at the time of transition determines whether or not
there will be trials. In fact, the notion that “the victor tells the tale” squares
well with several important cases of transitional justice across the globe
(Nobles 2010).5 Even when the phenomenon proves much more dynamic,
and trials are not forever conditioned by the power of former dictators
during transitions (Olsen et al. 2010; Kim 2012; Lessa 2013),6 the gen-
eral intuition about the role played by the stakeholders of power is still an
important one (Lessa et al. 2014). Uninterested or ideologically opposed
politicians can stall human rights prosecutions at any given point. By the
same token, the rise to power of supportive presidents may revive the
impetus for justice. In line with this view, some observers have attributed
the recent wave of transitional justice in Latin America to the emergence
of let-wing governments (Evans 2007; Karl 2007; Roehrig 2009).
However, by adding the legal preferences of judicial actors to the equa-
tion, it is possible to see that the goals and tactics of political and military
actors need not overdetermine the outcome of these processes. In the same
way as support from politicians or a weak military does not automatically
translate into judicial victories, the presence of resourceful veto players
does not necessarily lead to impunity. Judges and prosecutors can play
an important role in blocking trials in otherwise favorable environments
(due to technical incompetence, legal formalism, or recalcitrance). For

5
he trials in Tokyo and Nuremberg are obvious examples. Similarly, when the Greek junta
let power ater a military defeat in 1974, human rights abusers were quickly taken to court
and most cases were resolved within two years (Alivizatos and Diamandouros 1997). By
contrast, ater the negotiated Spanish transition (1975–1977), no attempts were made to
prosecute those involved in the crimes of Franco’s regime.
6
For example, in Chile and Uruguay amnesties passed before or during the transition have
not been an obstacle to protracted struggles for justice. In Chile a few years ater Pinochet
let power some courts issued condemnatory rulings (Collins 2010). Initially, the Supreme
Court overturned the rulings, but since 1997 it has granted many exceptions to the amnesty
(Hilbink 2007a). In Uruguay, there were popular referenda on the question of whether or
not to uphold the amnesty law, and in all instances the pro–transitional justice camp lost.
In the late 2000s, however, demands for justice were reactivated (Sikkink 2005; Lessa 2013).
Important victories include a Supreme Court ruling in 2009 declaring the amnesty law
unconstitutional, and a guilty verdict against former dictator Bordaberry in 2010. Finally,
even in Brazil, where the issue of criminal accountability was absent from the political
agenda in the atermath of the 1985 transition, in the late 2000s prosecutors began to launch
criminal investigations (see Chapter 6).

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