Judiciary Defense Strategies against the Crime
of Enforced Disappearance of People in Argentina*.
The Experience of Struggle and Legal Defense against Enforced Disappearance.
The most important method used by State terrorism in Argentina during the
seventies and early eighties was enforced disappearance. As a systematic
practice, this procedure dates back to the fifties. Since 1960, security
forces, under the name of the Real Fuerza Area, a paramilitary force, would
arrest people for political reasons. “There was no knowledge of the
whereabouts of the arrested person until at least seven days later nor the
reasons for the arrest”. Governmental and legal authorities endorsed this
practice. During these years, the State persecuted banned fractions of the
Justicialista Party1.
In the sixties, political literature and revolutionary movements in Latin
America led the masses to question authoritarian state policies and join rebel
groups of various sorts. In this context, abduction and illegality were used
again to control dissidents, either through the State apparatus (under the
rule of Law) or by virtue of para-statal forces. The latter used abduction or
murder as instruments, while the State used, amongst other procedures,
censorship to actively conceal the truth. As Alicia Oliveira and María José
Guembe clearly state, “the press was not allowed to mention the ERP and
Montoneros by name. Their names were replaced by the words “first banned
organization” and “second banned organization.” These are strange euphemisms
for armed organizations”2.
These were then also signs of the times to come.
State Terrorism in Argentina
During 1976 and 1983, Argentina lived under the bloodiest military
dictatorship in its history. On March 24th 1976, Armed Forces overthrew the
constitutional government of María Estela Martinez de Perón. The commanders in
chief of the Army, the Air Forces and the Marine formed a Junta that exercised
power.
Ever since the times of Argentina’s constitution as a State, the Armed Forces
have had the role of articulating nationhood and safeguarding its principles
and values. This has been the way they are perceived by society, being a
predominant political party, for a long time accepted by civil society.
We are going to concentrate on measures taken to restructure society. The
immediate objectives were to demobilize political activity and the
organizational structure that sustained it, as well as abolish democracy. The
Armed Forces took control of the State to reach these objectives. The
government was formed by the Military Junta with a representative of each of
the Forces who designated Videla as President. The Junta took on legislative
functions, dissolved the Congress, removed almost all the judges, suspended
constitutional rights and individual guarantees and decreed several acts with
higher status then the Constitution itself. The judges replacing those who
were removed swore to defend this new institutional order.
Although these decisions stipulated a “legal” framework to exercise
repression, the military carried out repression undercover, with secret plans
and without judicial control. This clandestine and arbitrary repression
assured the effectiveness of operations since it prevented accountability and
control of abuse of power. It generated so much terror that response or
defense was completely paralyzed.
More than six hundred secret detention camps, usually in military or police
precincts, were set up to implement plans of control and repression. People
were kidnapped from their homes, work or study places or off the street, often
with their children. The judicial branch did not order any of these
detentions. Horrifying methods of torture were used to obtain information.
Since detention camps were clandestine, the existence of prisoners was denied
and judicial investigations were avoided. The fate of the disappeared was up
to each of the branches of the armed forces; most of them were thrown alive
into the sea. The Armed Forces did not execute prisoners by shooting because
they were aware that it would cause strong international objection.
More than 600 children of disappeared persons, imprisoned with their parents
or born in captivity, were abducted and illegally given to military families
and registered as their own. The Armed Forces systematically and extensively
violated basic human rights: life, physical and psychological integrity,
dignity, due process, identity and familial relationships, security, respect
for political and religious beliefs, work, property.
The military repression plan was developed by intelligence services and
approved by the heads of the Armed Forces. All levels of the armed forces were
engaged in this plan from the beginning so as to guarantee mutual cover-up and
silence.
Emilio Mignone, founder of the CELS3,
stated that the military dictatorship perfected a clandestine repressive
system, which, due to the mechanisms used, could be labeled as State
terrorism. It aimed to alter the social, political, economic and cultural
structure of the country and guarantee the power of the
Armed Forces4 by
virtue of the elimination of at least 30,000 people.
It is important to mention that the members of the Judiciary swore by the
Emergency Law decreed by the military. This means that the judges, who should
guarantee the observance of basic laws protecting human rights, signed to
defend this new institutional order. As postulated by Hannah Arendt, a
terrorist State is a State that deliberately and as the result of a political
decision, uses the available instruments secretly to threaten, abduct,
assassinate, torture, bomb, set on fire, ravage, etc. with the complicity of
all the official organs, resulting in a complete state of defenselessness of
its population. All of these instruments were applied in Argentina between
1976 and 1983. The main features of this period were the grave violation of
human rights as described above coupled with the persistent and constant use
of instruments granted by the legal order. The devices that Argentine positive
law granted were to petition an habeas corpus and the possibility of filing a
criminal lawsuit against the illegal deprivation of liberty.
Even in those cases in which the use of these legal tools had no positive
results, they were still useful as a measurement for other legal actions.
After some judges realized the seriousness of the acts, evidence was collected
to summon the perpetrators of these horrifying acts. The fact that there was
no response to judicial petitions is a conclusive proof of impunity. This was
the trigger for international action.
Opposition and Accusation of Grave Human Rights
Violations
During this time, more than 80.000 habeas corpus were petitioned. Most of them
were rejected or shelved without further investigation. Lawyers would not sign
these petitions out of fear due to the fact that public prosecutors were
compelled to inform the military of the names of petitioners. Nonetheless,
human rights organizations distributed forms and urged relatives to petition.
Human rights organizations provided victims’ relatives with a place to
denounce these acts since neither State organisms nor the judicial branch
would take on these cases. Human rights organizations set up a method to
systematize these accusations. They sponsored lawsuits, received and compiled
testimonies of former detention camp prisoners and documented human rights
violations.
Nevertheless, we consider that the most important role played by these
organizations was the dissemination of information, contrasting with the
secret and unintelligible military strategy. This became a main factor of
legitimization and recognition of their duties.
The international recognition of human rights organizations such as the Madres
de Plaza de Mayo (Mothers of Plaza de Mayo Square) was of great importance.
They became a symbol of struggle against authoritarian rule. They are mothers,
most of them elderly women, who did not use banners, only a white handkerchief
embroidered with the name of their children. Their strength stemmed from the
power of quiet action, walking around the monument for half an hour once a
week.
From a legal point of view, international support and solidarity was very
important in the defense of human rights, as well as other strategies such as
defense and dissemination. Human rights missions pressured the Argentine
military government, received hundreds of testimonies and informed the world
of what was happening in Argentina. One of the most important missions was the
Inter-American Human Rights Commission visit in 1979. An exhaustive report was
compiled, although its dissemination was prohibited in the country. However,
human rights organizations managed to make a clandestine copy, making the
results known. Amnesty International also visited the country during this
period and other important groups and organizations gave their assistance to
human rights organizations. International aid and the use of international
human rights protection forums, such as OAS and the United Nations, were of
great help to oppose the dictatorship.
Despite the lack of experience and legal resources, the work of Argentine
human rights organizations was sharp and energetic. They managed to awaken
international solidarity and become a decisive part in the internal
democratization process. They were able to keep the issue of State terrorism
within the limits of established legal order, the press and the public eye.
The task carried out is still of great value today.
The Restoration of Democracy. The Need to Clarify Facts and the Fate of the
Victims of Enforced Disappearance. The Difficulties.
The downfall of the Argentine military dictatorship. The economic crisis and
the failed crusade to recover the Islas Malvinas meant the ending of one of
the bloodiest periods in Argentine history. Before the military lost power,
two important events occurred. In the first place, the military government
published a “final” document with the intention of ending any discussion on
human rights violations6.
Illegal repression was justified and praised. All the disappeared were
declared dead with no further explanation7.
The Junta tried unsuccessfully to avoid going to court for the crimes
committed. To this end, a law was passed, “Ley de Pacificación Nacional”8
(National Pacification Law) establishing an amnesty for all the crimes
committed between May 25th 1973 and July 17th 1982 in the struggle against the
guerilla.
Democratic elections were finally held on October 30th 1983 and Dr. Raúl
Alfonsín the candidate for the Unión Cívica Radical party was elected to
government. His campaign had emphasized that his government would convict the
perpetrators of crimes against human dignity. One of the first measures taken
by the new democratic government was to send to Congress a proposal to abolish
the self-amnesty law sanctioned by the military dictatorship. The executive
set up the National Commission on Disappeared People (Comisión Nacional Sobre
la Desaparación de Personas known as Conadep for the Spanish acronym) to
discover the fate of victims of enforced disappearance. The commission was to
investigate the procedures used by State terrorism, accept denunciations and
collect evidence of human rights violations and discover the whereabouts of
the disappeared and of the abducted children9.
The Conadep was made up of five subcommissions and working groups. It received
8960 denunciations of detained disappeared persons in less than a year. Its
members traveled throughout the country, sent out 1300 requests for police and
judiciary records, held 30 press conferences, organized a data bank, compiled
7380 files with the denunciations, determined the existence of 1300 people
seen in concentration camps who were still missing; visited cemeteries and
mass graves where unidentified bodies had been buried following military
orders. The Commission presented the Judiciary with eighty groups of cases for
further investigation and prosecution of the perpetrators. The Conadep
individualized 1351 repression participants, though it was not authorized to
make the names public. The Commission warned that it did not have the faculty
of condemning people whose names were mentioned in testimonies, on account of
the duties they carried out or mentioned in passing in the testimonies
compiled since this was faculty of the Judiciary branch, under the Argentine
Constitution.
Conadep’s biggest contribution was the report it presented, Nunca Más (Never
Again), consisting of more than 50,000 pages of documentation and a summary of
490 pages that has become internationally renown. The report was a
denunciation of the repression policy of the military dictatorship. It was
able to establish the procedures used by State terrorism to abduct, torture,
disappear and assassinate defenseless prisoners. The report stated and proved
that the only way that this policy could have been carried out was with the
complicity of different sectors and institutions in exchange for a concession
for impunity. The report also highlighted the ability of democratic
governments to carry out investigations and bring out the hidden truth with
the help of civil society.
A Turning Point: The Commanders’
Trial
Another equally significant measure adopted by the democratic government a few
days after it went into office was the decision (by decree of the Executive
branch) to put the military Juntas on trial10.
On one hand, the government’s aim was to punish the members of the Armed
Forces that had participated in human rights violations. On the other hand,
the government attempted to incorporate the Armed Forces into the democratic
system to guarantee the stability of the regime. To carry out this strategy,
the military was given the possibility of self-judgement under the military
code. The competence of military justice to carry out the trials was
established by law11.
But due to pressure from human rights organizations, opposing judgement under
the military code, a higher stage was incorporated in which civil justice
would revise the sentences. In case of unjustified delay in the judicial
procedures, civil justice would take over responsibility for the judgments.
Sure enough, a few months after the trial began in martial courts, the orders
to repress were considered completely legitimate and thus, there were no
sanctions. The reason was that military judges refused to condemn their
colleagues seeing that there was a higher civil court that could carry with
the costs. Hence, the government’s first strategy of the “self-cleansing” was
a failure.
After the military justice refused to punish members of the armed forces, the
Appeals Chamber of Buenos Aires took responsibility for the trials. On
December 9th 1985, after nine months of investigation, the courts sentenced
that there had been a systematic and deliberate plan arranged by agreement, to
carry out an undercover systematic repression policy and that this policy was
the dictatorship’s main weapon to eliminate insurrection movements. Five of
the commanders in chief of the Juntas were sentenced for the crimes of
assassination, deprivation of liberty and torture, amongst other crimes. Four
of the commanders were acquitted due to lack of evidence.
The public trial of the military junta was a turning
point in the recent history of Argentina. The presence of witnesses in court
meant that the acts denounced during the dictatorship became an accepted
judicial truth12. On the
other hand, the sentence established the systematic character and the extent
to which the military plan had been carried out to violate human rights. Most
importantly, the State had proven its capability of imposing itself with legal
guarantees and a fair trial over the abuse of power and human rights
violations. The trial confirmed that a State of Law is the only instrument
capable of putting the authority to the service of citizenship and not above
it13.
The Extension of the Trials to the Rest of the Military.
The Impunity Stage. A Step Back. The Challenge Facing Human Rights Lawyers.
The strategy of the government was to take just a few members of the Armed
Forces to trial and let the rest go unpunished. There were various
unsuccessful attempts to establish an exemption under the concept of due
obedience. Nonetheless, the government still had hopes of achieving this
objective though it lost all meaning once the judges ordered a thorough
investigation of the participation of lower ranking members of the Armed
Forces in criminal acts that had been uncovered during the trial. On the other
hand, many victims made new accusations as result of the trial; in only a few
months, two thousand lawsuits were filed against members of the Armed Forces
in active duty. The executive branch tried to keep the consequences of the
trial under control and avoid trials against the rest of the members of the
Armed Forces14.
In spite of the government’s efforts, officials in
active duty were disturbed by the extension of the trials to the rest of the
members of the Armed Forces and pressured the government to sanction a law
that would prevent the persecution of officers. This law established a
deadline for starting court inquiries of accused military officials. After the
deadline no other trial could be started. The law established a 60-day
deadline from the day of its sanction. This law was known as the Ley de Punto
Final (full-stop law)15.
The government’s failed attempt was to put only a few officials on trial as
well as concede tranquility to the Armed Forces. However, this objective would
be obstructed by the work of human rights organizations that speeded up the
process of petitions, as well as some judges’ commitment to prosecute
perpetuators. Consequently, a great number of officials were charged. As a
result of this situation, the first military crisis under democratic
government was unleashed, demanding a pardon and a political solution to the
trials. The so-called Law of Due Obedience16,
was passed to solve the tension. This law exonerated officials since judges
investigating officials were to assume that they had obeyed orders under
coercion of their superiors, with no possibility or faculty of inspecting,
opposing or resisting orders under the presumption that they were legitimate.
This law crossed the boundary of the division of power, overstepping judicial
independence. According to Argentine law, it is the prerogative of judges to
decide exemption. Congress imposed an absolute and arbitrary law17.
Both laws were applied by judges and validated by the Supreme Court of
Justice. As a result, persecution for State terrorism crimes was halted for
seventeen years.
Carlos Menem, the second constitutional president since the fall of the
military, attempted to close this cycle of impunity of grave human rights
violations with decrees in 1989 and 1990, pardoning the officials that had
been convicted in 1985. The right of the relatives to attain justice was
denied by laws and decrees. This motivated a great deal of appeals to
international human rights organizations. Petitions to international
organizations had been an active recourse during the military dictatorship but
continued to be used with the return of democracy denouncing the State’s
violation of agreements made during the first months of democracy.
The Return to the International Route: Support of the
Demands for the Right to Truth
With the support of international civil organizations, the Argentine State was
denounced for violating the American Convention on Human Rights. As the
Inter-American Commission for Human Rights correctly stated to dismiss the
Argentine government’s motions, the denouncements were associated to the lack
of judicial guarantees and protection (Articles 8 and 25 of the Convention)
that are a consequence of the impunity laws mentioned above. On the other
hand, the violations of the right to life, the right to physical and
psychological integrity, had been committed before the Argentine State
ratified the Convention, therefore, the Commission was incompetent.
The Inter-American Commission declared that the laws and decrees of impunity
are incompatible with the American Declaration and Convention (Report 28/92).
The Commission recommended that the Argentine government indemnify petitioners
for not guaranteeing justice and judiciary protection. It also recommended, as
we will see when we discuss the right to the truth, that the government adopt
the necessary measures to clarify the facts and point out the individuals held
accountable of human rights violations during the last
military dictatorship18.
The Demand for Justice and Truth Continues as a Domestic
Affair
Civil society organizations quietly continued their ongoing struggle for
justice. The legal standing of the impunity laws lasted for more than ten
years, until the National Congress revoked them on the March 24th 1998, 22
years after the coup. Nevertheless, political leadership immediately made it
clear that this was only a symbolic decision since the laws had already been
applied. In spite of this, human rights organizations saw this as a sign in
favor of serving justice. We will analyze the effects later on.
The First Achievement: The Struggle for the Recognition
of the Right to Truth
Subsequently, an impasse was reached and the issue was left on the back
burner. Human rights organizations, in spite of not being able to serve
justice, continued their work quietly and tirelessly. During this period, it
seemed that Argentine society did not want to be reminded of the past. Almost
ten years later, in 1995, Horacio Verbitsky, a journalist, published “El Vuelo”
(The Flight). In this book, Adolfo Scilingo, a marine, described his
participation in State terrorism and publicly confessed to having thrown live
prisoners, drugged and naked, into to the Río de la Plata River from navy war
airplanes. This reopened the debate about the past.
For the first time, a description given by one of the perpetrators brought to
light the procedure used in many cases to give closure to the problem of the
existence of thousands of surviving prisoners. It confirmed what society had
learned from the testimonies given by the victims. Scilingo’s confession led
to a multitude of reactions. But this time, the voices that were heard not
only belonged to direct victims and human rights organizations, but from many
other sectors as well. Public demonstrations were organized, flowers were cast
in the Río de la Plata River, and journalistic and academic articles were
published. The State institutions, as before, stuck to the conspiracy of
silence. The government tried to silence the perpetrators that repented of
their acts and put an end to the outburst of memory.
In addition to the individualized demands of relatives, social demand grew and
became increasingly loud. Beyond truth as a mere formality, there was a search
for the right to reconstruct the truth. The demand had to be channeled
institutionally; therefore it was conveyed to the judiciary. Ironically, the
judiciary had been a fundamental tool of the defense in the worst years of the
military dictatorship by virtue of its ability to gather evidence and had
played an important role in the first trials against the perpetrators. At this
point, with hardly any changes in the corps of the judiciary, the institution
became a spearhead in the ability to uncover the truth and return it to the
relatives of the victims, and by the same token, to society as a whole.
At first, the only ones who could initiate legal claims were the victim’s
relatives. Subsequently, human rights organizations were accepted as sponsors
of broader societal interests. The right to truth was raised as a collective
right and, as such, a right of democratic societies. The fact that the
perpetrators could not be convicted did not undermine the participation of the
judiciary since there was still the possibility of investigating the fate of
the disappeared and the whereabouts of their corpses. Also, a thorough
investigation could be carried out to discover the mechanisms used by the
military dictatorship.
A series of lawsuits, were filed to continue the investigations. These were
explicitly based on international human rights legislation proclaiming the
right to truth, the right to mourn and cultural patrimony. The Argentine State
was required to fulfill its international obligations. The source of these can
be found in the doctrine of the Inter-American Human Rights Commission and in
the Inter-American Human Rights Court that acknowledge relative’s right to
know the fate of the disappeared and the responsibility of the States in the
investigation of human rights violations until the whole truth is known.
In the particular case of enforced disappearances, the inquiry into violations
requires not only an economic compensation, but also includes a full
investigation to inform the family of the facts. Enforced disappearance of
persons was a procedure used by States to confuse families and deceive society
and the world. For this reason, the right to truth and justice became a banner
around which society rallied. The State must make all the information it has
public to interested parties and to society as a whole, as well as make the
devices available to reach the truth. Many attempts were made so that local
courts acknowledged the right to truth, a concept that had been developed in
doctrinaire studies and international jurisprudence. This right is a
reconstruction of the ancient duties of the State and individual rights. It is
included in the Argentine legal framework as a right that stems from the
principle of sovereignty and republican government in the Constitution. This
was the main argument justifying the State’s responsibility of investigating.
Consequently, the right to truth is the right to procure answers from the
State. The right to truth is an essential element of the right to justice.
Every individual can require information from the State.
There is also a non-individual right to truth based on the collective right to
know the past as a safeguard for the future, amongst other reasons. The
consolidation of democracy is founded on society’s right to know its
institutions, its actors and past events.
The judicial petitions for the right to truth included the right to mourn the
dead since the bodies of the victims of enforced disappearance were never
found. This is why the demand to know the whereabouts of the corpses is part
of the reconstruction of truth. The right to mourn and respect for the dead
was part of the argument defending the right to dignity acknowledged in human
rights international law. The cult of death practiced in different manners in
western society, and burial, as known today, is a cultural patrimony of modern
man.
The military dictatorship denied the right to bury the dead and obstructed
truth, an elemental part of the mourning process. Reality was denied by the
denial of accurate information creating a great sense of fear, State terrorism
functioned based on this mechanism. Only a void existed, there was no life or
death, nor were there truth or lies. The bodies of the dead were not rendered
to relatives nor were death certificates given out. This prevented the still
pending mourning process as a consequence of not knowing the whereabouts of
the corpses of the disappeared.
Judges were reminded that respect for the deceased is a cultural standard
recognized in Argentine legislation. The law recognizes systematic legal
protection of the corpse. The demand for these rights was based on judicial
regulations in both domestic law and human rights international law.
From the point of view of local legislation, we think that the right to truth
is the whole point of the penal process. Public interest demands the
disclosure of truth during the trial. The truth is the means to serve justice.
To make this right truly effective, it is necessary to count on the faculties
of the Judiciary branch to gather information on past facts to fulfill the
international commitment of investigating and repairing the consequences of
human rights violations. Impunity is based on non-punishment, but it is
worsened when the responsible are not individualized and when the truth is not
known. This is why there was still room for judicial intervention.
The First Answers given by the Judiciary Branch: The
Recognition of the Right to Truth.
On April 20th 1995, judges passed a resolution stating that penal procedures
have exceptional relevance and that public interest demanding judicial truth
should be tutored, as a way of reaching higher values: truth and justice. This
resolution recognized the right to truth and the right to mourn as an integral
part of international human rights law. Its acceptance is clear when they
quoted the words we had used in a lawsuit. “Those who deny us the right of
burying our dead are denying our humanity”, was the quote. After this
resolution, the court requested reports from the Armed Forces, but the
information was denied.
Subsequently, the court changed its criteria and stated that tutoring the
right to truth was not under its competence. To justify this change of heart,
they alleged that petitions went against the principle of not standing trial
twice for the same crime. With this statement, they gave an end to arguments.
However, they did not realize that the institutional frame had not recognized
human rights. Recognition had came from a painful struggle that taught the
country a lesson. Those who had learned the lesson and knew the struggle would
not allow the demands to be kept quiet nor be content with the formal truth
knowing the effort it takes to open the mind of the judiciary.
Those who were legitimately entitled to act demanded insistently that the
Judiciary apply the international human rights doctrine, especially the pro
homine principle and the preferential rights system. The pro homine principle
states that any law favoring a person, whether domestic or international,
should be applied.
There is a pacific jurisprudence that tutors the right to truth, as such;
important measures have been taken, like ordering the heads of State terrorism
to testify again.
The Second Victory: The Struggle for Justice
The struggle for the right to truth included the struggle for justice to be
served. Argentine courts have given some encouraging signs. Several petitions
for crimes against humanity crimes committed during State terrorism have been
filed and judges have began to recognize the existence of these crimes in
Argentine legislation and that they are not subject to any statute of
limitations. First, I should mention the new preventive arrest of the leaders
of the military dictatorship in 1999 as a consequence of demands claiming the
abduction of imprisoned minors, a crime that was excluded from the impunity
laws of 1986 and 1987. The perpetrators are under home arrest, awaiting a new
trial for crimes that have never been tried. Nine officials are under arrest
for these crimes. This encourages the possibility that courts might declare
the nullity of the impunity laws, as they should have done when they
were passed19. This success has been
possible thanks to the determination and perseverance of human rights
organizations and the creativity and hard work of lawyers.
Once Again, the International Via. Third Victory:
International Conscience of Crimes against Humanity.
At the same time justice was being sought abroad. A few years ago, courts from
different countries stated their competence to judge crimes committed against
humanity in Argentina, preventing Argentine officials to leave the country.
The trial in Spain is the one that most concerns the Armed Forces and the
government. Judge Garzón recently sent Argentina an order for the arrest of 48
members of the Armed Forces, Causing uneasiness amongst the officials that had
recovered some political power and had started to pressure the government once
again.
The attempt to give closure to history and end social demands by passing laws
and decrees has proven unsuccessful. The legacy of history remains present.
Similar developments have occurred in Chile, Uruguay and Brazil.
In conclusion, the Argentine situation is an example of the use of almost all
the procedures to make amendments for the grave human rights violations:
self-amnesty, annulment of this resolution via the legal channel, truth
commission, trials, amnesties, pardons, truth trials, trials abroad, economic
reparation and the reactivation of justice in national courts. All of these
actions were possible due to the constant work of human rights lawyers. The
only way of reinforcing our demands is to follow their example.
Footnotes:
* Paper delivered by Diego Morales, lawyer at the Buenos Aires Obdusman’s office and collaborating lawyer at CELS. This presentation would have not been possible without the unconditional support, memories, information and help of the people who have dedicated their professional life to the struggle for truth and justice, especially, Dr. Alicia Oliveira, Buenos Aires Obdusman and my great friend María José Guembe, Coordinator for the CELS program “Memory and struggle against impunity of State terrorism”. For more information on the issues presented here please see the following articles: Oliveira, Alicia and Guembe, María José: “La verdad, derecho de la sociedad: en La Aplicación de los Tratados sobre Derechos Humanos por los Tribunales Locales”, Abregú, M. and Courtis Ch.; (ed), CELS; Del Puerto 1998; Guembe, M.J.: “LA LUCHA CONTRA LA IMPUNIDAD”, IN LA SITUACIÓN DE LOS DERECHOS HUMANOS EN ARGENTINA —PERÍODO 1998, Centro de Estudios Legales y Sociales, Eudeba; and Mariezcurrena J., “Experiencias en Argentina en materia de reparaciones por atrocidades del pasado y el trabajo de la sociedad civil” (unpublished maunuscript). Back
1 After governing Argentina for nine years,
the Justicialista Party more commonly known as Peronism, headed by its leader
and founder, Juan Domingo Perón, was banned from elections until 1973.
Political groups struggled for its return to elections. One of the most
important was Resistencia Peronista (Peronist Resistance).
Back
2 Oliveira Alicia; Guembe María José: “La
verdad, derecho de la sociedad”; in La aplicación de los Tratados sobre
derechos humanos por los tribunales locales”, Abregú, M. and Courtis Ch.; op
cit. Back
3 The Center for Legal and Social Studies
(CELS is the Spanish acronym) is the human rights organization created under
military terror. It used all existing legal resources, even as a defense
strategy, to try and reestablish a rule of law. Back
4 Emilio Mignone, founder of CELS sustained
this thesis. See Mignone, E.; Op. Cit.; p. 54 Back
6 Document published on April 28th 1983.
Back
8 Decreto ley (decree law) 22.924, September 23rd
1983. A decree law is an act of the executive enforced by law without an
operating Congress. Back
9 Decreto Ley 187/83, Comisión Nacional de
Desaparición de Personas (National Commission on Disappeared People), December
15th 1983 Back
10 Decreto 158/83, Juicio Sumario ante el Consejo
Supremo de Fuerzas Armadas, December 13th 1983, by which the President of the
Nation ordered the initiation of a criminal procedure –under military courts-
of the heads of the Armed Forces. Back
11 Decreto 158/83, Juico Sumario ante el Consejo
Supremo de las Fuerzas Armadas, December 13th 1983 by which the Nation’s
President ordered the prosecution, by military justice, of the military heads.
Back
12 During the years of the military dictatorship, one
of the main strategies of the human rights movement was the public
denunciation of what was happening both within the country, in spite of the
resistance of the media, and abroad. Back
13 These statements do not dismiss the criticisms
against both the process and the sentence. See Sancinetti, Marcelo; op. cit.
p. 45 and ff. Back
14 In an attempt to end the trials, the executive
branch sent instructions by way of the Minister of Defense that the General
Prosecutor Of The Armed Forces should allege due obedience under the
assumption that “subordinates had acted under a mistaken belief in the
legitimacy of these orders”. This attempt was not successful, however, due to
pressure exercised by civil society and parliamentary opposition.
Back
15 Ley 23.492 de Punto Final, December 12th 1986
Back
16 Ley 23.521 de Determinación de los alcances del
Deber de Obediencia (Limits of Due Obedience), sanctioned on July 8th 1987
Back
17 Sancinetti, op cit p. 134
Back
18 The Commission reached to the same
conclusion over the amnesty in Uruguay, Report 28/92 and the self- amnesty
declared by Pinochet in 1978, Report 36/96 Back
19 CELS has presented petition to declare the
unconstitutionality of impunity laws, and consequently punish the perpetrators
of human rights violations in Argentina during 1976 and 1983.
Back