Argentina’s Human Rights Trials
This book is translated from Spanish, originally appearing under the title Juicios por crímenes de lesa humanidad en Argentina (2011).
Table Of Contents
- About the editor
- About the book
- This eBook can be cited
- Part I: Argentina, 1983–2010: Democratization
- Argentinean Society Today: Between Memory and Forgetting
- The Self-Amnesty
- The CONADEP and the Trial of the Juntas
- Punto Final and Obediencia Debida
- The Amnesties
- The Confession
- The External Factor
- The Vespers
- The Annulment
- The Trials
- The Politics of Human Rights in Argentina, from Alfonsín to Menem
- The New Approach to the Issue with Menem
- Memory, Truth and Justice: Ideas of an Institutional Justice
- The Attempts at Closure and the Construction of Responses
- “Another Contingent of Mothers”
- The Myth of the Absent State
- The Changes of the Narrative and their Limits
- The Moment of Legitimation
- 2001–2008: The Collapse of Legitimacy and Corporate Delegitimation
- Part II: Memory and Truth
- The Narrative as a Formative Influence on the Norm: The Experimental Aspect of the Critical Interpretation of the Argentinean Past
- Impunity and Justicia Universal (Universal Justice) in Relation to Crimes Against Humanity
- Concealment and prevarication
- Concealment and prevarication in Spain
- Justicia universal
- Application of the principle of Justicia Universal by the Spanish courts
- Subsidiariedad or concurrencia?
- Current contents of Article 23.4 of the Organic Law of the Judicial Power of Spain
- Constraints on the International Criminal Court
- The Trials in Italy
- The basis of the prosecutability of these crimes in Italy: Articles 8–11 of the Italian Criminal Code
- The progress of the first trial in Italy in the Foro di Roma
- Summary to 1989
- Preliminary investigations subsequent to 1989
- The application for letters rogatory for the hearing of witnesses in Argentina
- Request for dismissal by the Prosecutor and opposition to it
- The closure of the previous investigations and the preliminary hearing
- The phase of the oral hearing
- The development of the second trial in Italy in the Foro di Roma
- Preliminary hearing
- Oral Proceedings
- The position of Emilio Eduardo Massera
- Part III: Justice
- The Trials from the End of the Dictatorship Until Today
- The end of the dictatorship
- The trial of members of the military juntas and human rights policy of President Raúl Alfonsín
- The Laws of Obediencia Debida and Punto Final and the Amnesties
- The Trials abroad
- Trials in Argentina before the annulment of the laws
- The annulment of the Laws of Obediencia Debida and Punto Final
- The reopening of the trials
- The debate in the trials
- The Reopening of Judicial Proceedings for Crimes Against Humanity in Argentina
- State terrorism and crimes against humanity in the case of Argentina
- The declaration of the unconstitutionality of the military pardons
- The further evolution of Argentinean Justice since the “Riveros” ruling
- Genocide in the Argentinean case?
- Crimes Against Humanity and Genocide: Origins and Meaning of the Prohibitions
- The Argentinean State in the face of the Violations of Human Rights in the Period 1976–1983
- Crimes Against Humanity
- The Genocide
- The importance of calling things by their names
- The Genocide and the irradiation of Terror
- The Process of Justice for the State Crimes Committed in Argentina During the Last Civil-Military Dictatorship. The View of a Lawyer Representing Victims and a Militant in HIJOS
- The appearance of HIJOS as part of the human rights movement in Argentina: The context of impunity
- The escraches, Trials for the Truth and international authority: preparing the ground for the current state of the judicial process
- The unconstitutional nature of the laws of impunity: the new step in the process of Justice in Argentina
- The limitations of the current stage of justice: what is missing
- A form of closure: the value of the trials
- The Role of Testimony as a Tool for the Creation of a Political Project
- “Present, now and forever”
- Light on the truth
- Testimony, role and limits
- Silence, yes, but not everyone fell silent
- Part IV: Memory and Democracy
- Gaps in Memory and Political Silences
- The invention of the past
- 1973–1976: some neglected issues
- Towards a more complex memory of state terrorism
- The Memories of the Disappeared in Argentina
- The military discourse and the humanitarian response
- The return of democracy: the narrative of Nunca Más
- Reframing an identity
- The Uses of the Past and the Politics of the Present
- The 1990s
- The return of the repressed
- Kirchnerism: trials and memory
- Memory and the history of the disappeared
- History and Memory: Some Theoretical Investigations for the Latin American Context
- Series index
← viii | 1 → GABRIELE ANDREOZZI
Memory allows us to communicate: through it we can recover the meaning of words; it permits us to move around in our environment and recognize ourselves; memory gives us a past and a future.
Past events must be addressed through a process of redefining perspectives in understanding a society and in the ability to re-elaborate the present.
The 1970s represents, on a global level, a period of cultural ferment which created alternative political models, but it is also thought of as a period during which states institutionalized, at different levels and with different modalities, the use of violence so as to suppress aspirations for social justice.
Governments monopolize the “legitimacy” of the use of violence through the method of the exclusion of the other, who is stigmatized as an enemy of society. Prisons, centres for the identification and expulsion of immigrants in Europe, Guantánamo, Abu Ghraib, secret detention centres in Argentina, the Nazi concentration camps, represent – each one with its own distinctions and peculiarities – structured and disciplined punitive forms of the perennial dialectic of “discipline and punish” in the constant establishment of public order. It is the perfect realization of a two-faced state, or dual state, together with the advanced realization of a regime of “authoritarian democracy” in which dehumanization is raised to legality with the consequent separation of formal and substantive law.
The book raises the question of the dialectic between history and memory in which memory enters explosively into the field of history through the courtrooms, and is not limited to them. The period of the Argentinean trials marks an indispensable moment in the rebuilding of a society traumatized by a history of grave crimes against humanity.
← 1 | 2 → For a person born in Italy after the 1970s but who has suffered its burdens and its consequences, to speak of Argentina has different meanings. These range from not forgetting the tragedy of an atrocity, to understanding the present socio-political evolution – not only in Argentina – of the dialectic which arises between impunity, denied and forgotten memory, and continuous regressions to an unsuperseded past.
This is why I believe that only through an analysis of the years of the dictatorship and the transition to democracy can the behaviours of today’s society, the democratic credibility of the institutions, the sense of belonging to the community and the reconstruction of the lost identity be understood. Such an analysis is necessarily composed of different substrata and has multiple nuances.
There are many different ways of approaching the facts: documents, stories which create a past, and the methods of truth formation. The choice of a multidisciplinary project of reflection has been dictated not only by the need to give a true picture of the complexity of the social and institutional dynamics in relation to the subject of memory, but above all because of the firm conviction that the instruments of the composition of the truth will and be should be numerous in a debate about a past which is both permanent and contemporary.
Both a society and a human being who have been deprived of memory, find their intrinsic path of evolution irreparably jeopardized. Error without memory – not only as reminiscence but above all as reflection – implies being condemned to repetition, to an infinite present, because it does not permit the creation of antidotes such as the deviations innate both to a society and to the human being. Memory, therefore, represents one of the fundamental pillars of the social structure, without which the latter is put at risk.
Argentina’s history is marked by recurrent coups which have sadly conditioned the country’s moments of democratic development. Currently, the state is distancing itself from an atavistic impunity, thus freeing itself from the social obsession of being a nation without memory.
← 2 | 3 → The current “judicial season”1 is creating the preconditions for the consolidation of those democratic institutions in which citizens can recognize the object of a complex process of discussion about the role of the state. Truth, justice and memory have been, and are, hallmarks of an Argentinean dynamics around which a strong collective identity is being created, beyond the all too high a risk of a new social breakdown. It is enough to think about the legal discourse. This is founded on the reception of the dictates of international conventions for the protection of Human Rights which are at the core of this democratic renewal. Precisely because they are universal, they can be related to a “rational being” outside of time and space.
In the trial of the unconstitutionality of the amnesty laws, the Corte Suprema (Supreme Court) made reference to international law in order to strengthen the national legal system, transforming the fundamental rights from mere “noble affirmations” into true and proper, effective and exercisable, rights. The actual scope of the semantics of the universality of rights is thus established. These are no longer universals treated as a dead letter because the world is becoming globalized, but are proper to the human being as such, regardless of political action (compliance or lack of compliance with the various international conventions), and a collective perspective which takes account of peoples, their history and identity. They are rights inscribed in the Constitución Nacional (National Constitution), the constitutive moment of every nation, and taken up by international law as the result of a globally accepted ethic in which the action of the individual and the right to live a decent life are preserved. With this summary the aim is to demonstrate that, in the context of a history of serious crimes against humanity, the indivisibility and interconnectedness of human rights cannot renounce the judicial moment because of the turn of society in a truly democratic direction.
← 3 | 4 → The present account, whether developed inside or outside of the courtroom, is a tortuous passage which serves both to condemn the violent past of the state and to rethink social, economic, institutional, trade union and political relations. In its rational and collective signification, its high foundational value should be understood as belonging to everyone, not tainted by any political affiliation, so as to avoid Influencing history with a partisan vision or colouring. Without justice, the minimum conditions for democracy do not exist and without democracy nor do the conditions to decode, and thus decipher, the social fracture.
It is necessary to recognize the political support which one part of Argentina’s ruling class has given to the exercise of legal action against the military, the capacity of having illuminated the power and beauty of the law as the receiver of demands arising from below and as of the stories told so far. The trials affirm a judicial truth and legitimate a new story of the Argentinean past, to be shared by the majority of society, and at the same they time react against this, because of the high symbolic value such a story assumes. The criminal charges for crimes against humanity are the offspring of international visions of law, of the conviction that the right to truth is an essential tool for the creation and strengthening of institutions in which the citizen is recognized, believes and feels himself to be represented and protected as an active member of a community. Today, involved in restoring dignity to the thousands of victims of state terrorism is just one of the three state powers: the judiciary. The State must regain credibility, weakened by years of coups, by not neglecting the law’s capacity to act, which “is the premise of happiness”.2
The active exercise and substantial recognition of law represent the nodal turning point of a new constituent moment. It is with the law and in the law that the condemnation of State violence, torture and betrayal is executed, as a fundamental means of orientation of political action. ← 4 | 5 → Therefore, the criminal process delineates a renewed confidence in the institutions, but includes a moment of reconciliation with the past itself.3
The pursuit of justice, collective memory and history, although they are considered to be distinct, do not contradict each other but nourish each other in the fight against the snares of oblivion.4 The methods of investigation of the judge5 and the historian6 are both oriented by the reality principle, to the obtaining of evidence, and are united in a very close relationship. The historian is credited with a privileged investigative ← 5 | 6 → position which allows him to assume procedural acts not only as sources of knowledge of events or situations which are the subject of trials – of which traces are also found in the trial – but also as a parameter for evaluating the correctness or incorrectness of the research procedures and the conclusions reached by the judges. It is also through the criminal trial that the reconstruction of the process of cultural control over the use of the discourses is achieved.
The Argentinean dictatorship has reacted at the cultural level by enacting a process of the emancipation of language, thus reducing society to aphasia. The society has been, and is, nothing other than the freezing of words, an extirpation, but at the same time a state of alarm in relation to external stimuli. It is as if an entire nation had been affected by this disease, and that recovering the internal disposition to cure itself has cost it much. The human rights organizations have been the remedies, and throughout their trajectory have been able to make themselves heard and to this day have been a symbol of the cure of the disease. Therefore, through recently launched cultural actions, a new generation of Argentineans exists, engaged in different fields of political activity, and this generation is rebuilding the interrupted semantic field. We are witnessing the resumption of the principles of social struggle and of the consequent commitment to dispelling fear, which is the symbol of despotism, not of democracy. The recovery of memory is even taking place through the recovery of lost language skills and the restoration of the different centres involved in the functioning of language.
Calling things by their name, thus giving them an identity, is an action directed toward the future and represents a democratic legacy for generations to come in the perpetual journey of the consolidation of institutions.
Replacing one word by another with a different meaning, or from the same family, or using the wrong word, but with a similar sound to that of the right one, or even a word completely different and without any apparent connection with the correct one, completely misrepresents the content, the actual image we want to represent with the word.7
← 6 | 7 → Consider the reality enclosed and summarized in the word disappearance. The official military phrase suppresses the action in favour of the fate of the person who becomes a non-person. The disappeared is that which “… while it is gone, can not have any special treatment, is unknown, is a disappeared, has no significance, is neither alive nor dead, it is disappeared”.8
How do you explain to future generations the aberrant sense of disappearance? How will it be recounted when there are no more direct testimonies of what has happened?
The relatives of the victims, the grandmothers, mothers and children, experience this absence on a continual basis. They are only ones able to describe the full meaning and magnitude of intimate and emotional emptiness. On the other hand, it is much more complex to illustrate and decipher the social reach of the forced disappearance of an entire generation either for society or for history. Meanwhile, on the social plane, the reconstruction of history is enriched by the discussion between signifiers and signifieds in the reconquest of those semantic cultural and political spaces which were removed by the military, in search of a socialization of justice and the specification of the manifold identity of which a group is constituted.
The disappeared are present in the courtrooms, in the acts of commemoration, in the demonstrations. Their names resonate throughout the country through the narrative which serves to take revenge on the desire for their complete elimination. The disappearance is the power which hides itself and at the same time the power which hides concealment.9 The lack of a body, and therefore of mourning, is one of the most lacerating wounds a human being can endure. The intention of the military was to truncate the evolution of a different political activity, as a prolonged extirpation in order to cure a disease. It is a torture in time, with devastating effects on families and society. The ideas and the alternative political message were annihilation, transformation and subjection. Today the opposition is no ← 7 | 8 → longer considered a cancer to be removed,10 but rather represents a way of vindicating the rights themselves, a form of active participation. Democracy needs active citizens, while authoritarian regimes prefer the apathy and indifference which make people easier to control. For this reason the current debate about reform of the law – coveted by the last dictatorship – which disciplines the media should not be underestimated.11
At this point in time, after certain memorable elections, and using the tools proper to the criminal law, Argentina is experiencing a season of the rediscovery of her own story, a story different from the “official” story of the dictatorship. This story has taken place at the international level over a period of three decades, beginning with the social and political euphoria of the renewal which comes from the below in the second half of the 1960s, through the violence of the 1970s, to the rejection of politics and the triumph of neoliberalism in the 1980s and 1990s.
← 8 | 9 → The 1970s have been an unusual decade in the evolution of society in a large part of the world: characterized both by mass civil participation and reformist zeal, but also by widespread political violence on the part of the state. From Berkeley to the Sorbonne, students, together with workers and committed intellectuals, invoked “all power to the imagination”12 so as to defeat the Vietnam war and injustice in the world. They became enraptured by the Cuban revolution and the redemption of the African colonies. In the continent of South America the ideas of revolt encountered the strong opposition of bloody dictatorships.
The 1970s appear to be a still somehow unresolved period. They are an open space for reflection, especially with regard to the use of violence as a political instrument. There was everyday violence – in language, in public demonstrations in the squares, in addition to a series of serious incidents – in Europe. Organized and systematic violence on the part of the police and military was experienced in Latin America through Plan Condor, a sort of joint coordination of the various security forces, trained at the famous school of the Americas in the United States and in France by the Foreign Legion.
The aim of these reflections is not intended only to describe what has happened, but above all, to offer understanding of whether, to what extent and how the recent past is present in public life today.
- VIII, 358
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- Publication date
- 2014 (April)
- Crimes against humanity Argentina terror
- Oxford, Bern, Berlin, Bruxelles, Frankfurt am Main, New York, Wien, 2014. VIII, 358 pp.