At the beginning of this volume, Kathryn Sikkink argues that the justice cascade is the product of separate streams that converge to form an international norm of accountability. She points out that there is a particularly “strong accountability stream” coming from Latin America, focused on domestic prosecutions for past human rights violations. While there is undeniable evidence of numerous criminal prosecutions in the Southern Cone of Latin America, particularly in Chile and Argentina (see Par Engstrom and Gabriel Pereira’s chapter on Argentina in this volume), the case of Central America is not so clear cut. It represents an example within the region where accountability streams have not yet succeeded in cascading or washing away persistent cultures of impunity. Central America thus points to the limitations of the justice cascade.

To examine the limited ability of the international accountability norm embodied in the justice cascade to permeate domestic legal systems, this chapter considers the cases of Guatemala and El Salvador. Despite significant anti-impunity rulings, recommendations of official investigatory commissions, and decisions issued by UN human rights bodies, the IACHR, and the IACtHR, amnesty laws in both countries remain on the books, although they are applied in different ways. However, it is not the existence of an amnesty law per se that perpetuates impunity, but rather the lack of political will to prosecute and the existence of threats, corruption, and a climate of fear that have made it difficult to hold the powerful accountable for past (or present) violations. The international cascade toward individual criminal prosecutions has been more of an inconsistent trickle within the political and legal spheres of El Salvador and Guatemala. Only in 2011, almost thirty years after the worst of the human rights violations, did the trickle toward accountability accelerate in Guatemala, although it is not clear if this will dry up before it becomes a consolidated cascade. In El Salvador, impunity still seems impervious to trickles, streams, and cascades, although some evidence of change may be seen.

When Augusto Pinochet, the former head of state of Chile, died in 2006, he left a dual legacy. There were the hundreds of criminal complaints filed against him, and thousands more cases of people dead and disappeared under his rule, for all of which he would never be tried or convicted. Yet Pinochet also was a symbol of a different legacy. His indictment by a Spanish court on human rights–related charges, the extradition proceedings in the United Kingdom establishing that former heads of state were not immune from extradition for torture, and the subsequent Chilean Supreme Court proceedings stripping him of his parliamentary immunity – all these events demonstrated that heads of state, at least in the Latin American context, were no longer beyond the reach of the courts. In fact, Pinochet was one of at least eight Latin American heads of state then under investigation or on trial for human rights violations. Another dozen or so ex-presidents have been investigated, indicted, or convicted of corruption-related crimes. A couple of names appear on both human rights- and corruption-related lists.

This chapter looks at the increase in criminal investigations and prosecutions of heads of state and ex–heads of state in Latin America for both human rights and corruption crimes.

General Augusto Pinochet of Chile thought it would be a short trip. His plan had been to shop a bit in Paris, then go look into some arms sales in the United Kingdom, one of his favorite countries. He also needed back surgery, and surgeons at a prestigious private London clinic had agreed to perform it. He thought he would soon be back in Chile, the country he had led for seventeen years as dictator and later as appointed president, and where he was now an appointed senator-for-life. He turned out to be wrong. It would be 502 days before he would see Chile again; when he did, it would be a changed country, and he would have a changed position in it. Pinochet was the poster child for the dictatorships that swept across Latin America during the 1970s. On September 11, 1973, he overthrew Chile's elected president, Salvador Allende, and installed himself at the head of a military junta. Over the next months and years, former government officials, leaders of unions or student groups, or anyone suspected of antiregime political activity would be rounded up, imprisoned, tortured, and killed. In more than one thousand cases, the bodies were never found, and the families never knew the fate of their loved ones. Congress was dissolved, unions and political parties banned, and the courts tamed. In 1978, the military passed a law giving itself amnesty for the crimes committed up until that time.

The authors in Part I look at the different ways in which the quest for truth and justice can be carried out at the same time. These experiences use a variety of institutional designs to create an authoritative and official record of past events, to criminally prosecute the worst offenders, to give victims a platform, and to recommend changes that will dignify victims, educate bystanders, and ensure that “never again” becomes a reality.

In Chapter 1, William Schabas discusses the Sierra Leone experience from his vantage point as a member of that country's Truth and Reconciliation Commission. Schabas concludes that, despite many fears and some real, and unexpected, problems, there is no inherent reason why a TRC cannot exist side by side with criminal trials, in this case the Special Court for Sierra Leone. Although the two institutions had different mandates and were created at different times, their goals were complementary, and by and large each pursued those goals unhindered. Schabas also raises questions about the advisability of retracting an already-granted amnesty, and about the degree of real change in political culture needed to support transitional justice endeavors.

In Chapter 2, Sigall Horovitz looks at Sierra Leone from the perspective of a former staff member of the Special Court. She describes the operation of the Court, and analyzes its strengths and weaknesses in light of prior experiences with international criminal tribunals, especially in terms of local ownership and long-term strengthening of local justice.

The chapters in this Part focus on the interplay among different spheres or levels on which transitional justice efforts can occur, and the particular challenges and advantages of working at each of these levels. Of course, the question of whether justice should be sought at the local, national or international level is not an either/or question: multiple levels are needed. For example, it is difficult to imagine the gacaca process in Rwanda described in Chapter 8 having any legitimacy were it not for simultaneous efforts at the international (ICTR) and national levels to deal with the most serious offenders. But in these cases there is either a new emphasis on local-level efforts, a new conditionality imposed by outside intervention, or a new reopening from outside that intersects with domestic processes.

Chapters 7 and 8 exemplify the local-level approach, in which decentralized fact-finding, justice and, to some extent, reparation, is meted out by local villagers to others who committed crimes (the “little fish”) through informal processes based in part on customary law.

Patrick Burgess, principal legal counsel to the East Timor Commission for Reception, Truth and Reconciliation, talks about that Commission's innovative Community Reconciliation Procedures (CRPs). These village-level hearings for low-level offenders exchanged public disclosure, apology and sometimes minimal reparations for legal amnesty and social reintegration into their communities. Burgess finds that the CRPs were a resounding success despite problems with integration into the formal justice system and concerns about potential victim coercion and the inability to get at the major masterminds of the crimes.

Darfur, Guantánamo, Iraq, Haiti. As this book goes to press, they are the headlines, today's sites of killing and mistreatment of civilians and torture of prisoners. Abuses during conflict are not new. Nor is the demand, in many parts of the world, that something be done in their aftermath, that there be justice. But there is a growing sense that something can and must be done, not only to stop the atrocities but also to bring those responsible to account, to make the facts known, and to succor the victims. The Security Council refers the situation in Darfur to the International Criminal Court. In 2005, Spanish courts sentence an Argentine naval officer to 640 years in a Spanish jail for throwing prisoners, alive but drugged, from airplanes into the sea a quarter-century before. Slowly, often after years have passed and sometimes in venues far from the scene of the crimes, demands for justice emerge. The past, unaccounted for, does not lie quiet.

The study of how societies emerging from periods of civil war or dictatorship deal with the legacies of the past became a full-fledged subject of academic inquiry and human rights activism during the 1990s. The term itself is a bit slippery: transitional justice can be defined as the “conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”

It is a basic maxim of law that harms should be remedied. Every legal system insists on it, in some form. Under international law, states are obliged to provide remedies for violations of human rights, both as a matter of treaty law and as part of the general rules of state responsibility. Recent United Nations (UN) formulations view restitution, rehabilitation, and compensation as interlinked but distinct state obligations. Not only states must remedy past harms: the statute of the newly created International Criminal Court allows for individual offenders to pay reparations to victims, as well as for the creation of a trust fund to be used where individual awards are impracticable.

Despite these remedies, few reparations have actually been paid to victims of war crimes and human rights abuses in the wake of mass violence. So far, Germany has paid the largest reparations (for Nazi-era crimes). The United States paid reparations to surviving Japanese-American internees, but other claims from the Second World War, like those against Japan for “comfort women” and slave laborers, have fared less well. Outside the context of the Second World War, examples of large-scale reparations programs become scarcer. Chile and Argentina provided compensation, rehabilitation, and services to some (but not all) of the victims of their respective military dictatorships. The UN set up a compensation mechanism for victims of Iraq's invasion of Kuwait, some of whom suffered what could be characterized as violations of human rights.