Impunity in Cases of Serious Human Rights Violations: Argentina and Chile

Abstract

This study shows that in the last few years, domestic legislation in Chile and Argentina has allowed individuals responsible for serious human rights violations protected by the minimum standard of treatment to go unpunished, and this has become the rule rather than the exception. This practice can, in principle, be considered contrary to international law, as many organs for monitoring the application of international human rights norms have stated. However, ever since steps to consolidate democracy and reconstruct the economy began to be taken, third States, including Spain, have not demanded international responsibility in these cases, even when the human rights of one of their own nationals were involved. As regards Spain, this problem has resurfaced in relation to the international criminal jurisdiction of Spanish courts and the so-called Soria case. One possible legal explanation for this situation is the concept of a state of necessity, which has been regulated by the ILC in article 33 of the first part of the Draft Articles on International Responsibility. However, a least from lege ferenda, we cannot accept the fact that the perpetrators of serious human rights violations - against Argentinian or Chilean nationals or those of third States, including Spain - continue to hold civilian or military positions of responsibility in Argentina and Chile. In this sense, the ban on holding public office, in spite of being a very cautious sanction, would at least prevent the use of the term absolute impunity. At all events, it is true that inductive reasoning applied to the practice studied here shows that States are only minimally concerned with human rights, especially when their political and economic relations with other countries are in play.