Human Rights after the Dictatorship: Lessons from Argentina

September 25, 2007

In 1987, as then-President Raúl Alfonsín was proposing a series of laws to abort trials of military officials accused of committing gross human rights abuses during the military dictatorship (1976-1983), the Argentine human rights movement organized the first "March Against Impunity."[1] Few Argentines understood what "impunity" meant back then, but now it is one of the most frequently used words in our vocabulary. We talk about police impunity, impunity for the bombing of the Argentine Jewish Mutual Association (AMIA) in 1994, impunity for the 1997 murder of journalist José Luis Cabezas. Though there is still no justice for human rights abuses today—15 years and four constitutional governments after the end of the dictatorship—there has been a sea change in how Argentines think about issues like justice and accountability.[2] Unlike in 1987, when holding state officials accountable for their crimes seemed an impossibility, today there is widespread understanding that impunity is rampant in our society, and that this is a serious political and social problem that undermines our fragile democracy.

This brief history of the word "impunity" is a metaphor for the Argentine human rights movement. The movement helped establish in Argentine society the idea of impunity, or lack of accountability, yet it has not managed to obtain justice. Human rights work in Argentina today is very much an outgrowth of efforts begun more than 20 years ago. But our work has had to change a great deal to adapt to new events and circumstances.

The human rights movement in Argentina emerged in the 1970s, first in resistance to the crimes perpetrated by paramilitary groups during the constitutional government of Isabel Perón (1973-76), and then to the state-sponsored terrorism of the military dictatorship (1976-83). As is well-known, the main protagonists of this resistance were relatives of the disappeared, such as the Mothers and the Grandmothers of the Plaza de Mayo. Professional organizations also emerged to complement the work of the victims' families, particularly to document systematic state repression and to present legal cases to national courts and international groups. One such organization was the Center for Legal and Social Studies (CELS), created in 1979 by a handful of professionals, several of whom were lawyers, whose relatives had been disappeared.

Immediately after the end of the dictatorship, human rights groups concentrated their efforts on establishing truth and securing justice for those guilty of massive human rights crimes. They shared their information on human rights crimes with the National Commission on Disappeared Persons (CONADEP), the official truth commission that produced the now-famous report Nunca Más. Since CONADEP's mandate was limited to truth-telling, human rights groups also began building criminal cases against the perpetrators on a case-by-case basis. The government trials against the commanders of the military juntas encouraged the hope that there would be justice in Argentina, but it soon became clear that the government would prosecute only the junta leaders.[3] Indeed, in response to growing military unrest, the first constitutional government of Raúl Alfonsín (1984-1989) passed a series of laws—the infamous Full Stop and Due Obedience laws—effectively granting impunity to human rights violators.

These new circumstances confronted the human rights movement with difficult challenges. No longer was it resisting a dictatorship; it was opposing amnesty laws granted to human rights violators by a constitutional government. Caught in a drawn-out arm-wrestling match with the government over these issues, the movement became increasingly demoralized. Its efforts to achieve "truth and justice" seemed permanently quashed in 1990 when the newly elected president, Carlos Menem, pardoned and freed all those who had been previously convicted, including the junta leaders.

By the early 1990s, the human rights movement seemed defeated. With hyperinflation ravaging the country, few were interested in punishing the guilty for the crimes of the dictatorship, or in police violence or prison conditions. But as the economic crisis abated, people began to focus their attention on the quality of Argentine democracy. It became evident that ours was an incomplete democracy in which institutionalized violence remained a serious problem and vast sectors of the population remained vulnerable to abuses by the state. Discussions began about these other problems, including the lack of effective protection for civil rights, attacks on freedom of expression, backsliding in the enforcement of social rights, discrimination against minority groups such as immigrants and indigenous peoples, and lack of protection for children's and women's rights.[4]

Then, in 1995, former navy captain Francisco Scilingo confessed to participating in "death flights" during the military dictatorship. Scilingo described in alarming detail what had long been suspected: prisoners were sedated, herded onto a plane, and then thrown—still alive—into the Río de la Plata so their bodies would never be found. Scilingo's confession revived the issue of impunity and reinvigorated the efforts of human rights groups to see justice done.

How to obtain justice, given the constraints of the amnesty laws and the presidential pardons, was not immediately clear. But over time, human rights groups began to devise new strategies to combat impunity. Perhaps the most successful strategy was the opening of trials investigating the kidnapping of some 500 children of the disappeared, a crime not covered under the amnesty laws or the official pardons. By 1996 human rights groups had brought several cases before the courts, though the legal process moved at a snail's pace until 1998. But as public pressure mounted over this most atrocious of human rights crimes, a handful of judges began ordering the detention of high-ranking military officials implicated in baby kidnappings. Today more than a dozen previously pardoned military officers (including two former junta members) are again in prison.

The reemergence of the human rights movement in the mid-1990s was not solely linked to its efforts to obtain justice for the crimes of the past. It was gradually becoming clear that many current problems facing Argentine democracy called for solutions with a rights-based perspective. Some groups began to work on current human rights issues linked to the very nature of our incomplete democracy. But this required devising new strategies that went beyond opposition to the dictatorship and the struggle to bring human rights violators to justice.

Legal work was an excellent tool in this regard. It became clear that despite the limitations of our "incomplete democracies," the constitutional laws inherent within any democracy could be effectively mobilized to protect and promote human rights. In Argentina, for instance, constitutional rights are very similar to those protected internationally: Freedom of expression, due process and the right of assembly are all guaranteed to our citizens. And despite a history of frequent military coups, Argentina also has a very strong legal tradition. Even during the military dictatorship, human rights groups like CELS turned to the courts to protect human rights, presenting, for example, habeas corpus demands when individuals were kidnapped or disappeared. The 1985 trials against the former junta members further consolidated Argentina's legal culture, turning the courts into magnets for people demanding their rights.

It seemed logical to build on this tradition of legal activism as an explicit strategy to confront state abuses, for not only would this help protect or promote particular rights in specific cases, but over time it would help to further consolidate the rule of law in Argentina. In the mid-1990s, CELS launched the Program for the Application of International Law to Human Rights in Local Courts. Our goal was to develop a new, broader agenda that would supplement traditional human rights activism with legal work in the Argentine courts. We wanted to take advantage of the relationship between human rights recognized internationally and those guaranteed in the Argentine Constitution, using international treaties to which Argentina was signatory to bolster our work. We also wanted to replicate the experiences of other countries by developing legal activism around the central strategy of "leading cases"—those whose rulings set precedents for decisions in future cases.[5]

Using international law in domestic human rights work in Argentina has been bolstered by a recent ruling by the Supreme Court mandating that judges must apply international rulings and treaties to which Argentina is signatory to avoid international liability. This jurisprudence—coupled with the threat of international sanctions if such treaties are not respected—makes international law a very useful tool for advancing human rights protection within Argentina. In a country in which a strong legal tradition nevertheless did not prevent breaches of constitutional order or the systematic violation of human rights, constantly reinforcing the linkage between constitutional rights and internationally recognized human rights helps to strengthen Argentina's still-fragile rule of law.[6]

CELS has taken cues from pioneering constitutional-rights groups such as the American Civil Liberties Union (ACLU), but it is careful not to fall into the trap of trying to replicate the experiences of other countries given the very different nature of the judicial systems and the rights issues involved. One major difference with the United States, for example, is that Latin American judicial institutions have been greatly discredited. Their lack of independence, their widespread corruption, the lack of access to justice suffered by vast sectors of the population—all these problems have severely eroded credibility in the system.[7] In the United States, a decision not to convict a defendant because he or she was not proved guilty is generally seen as evidence that the court recognized the defendant's rights. But in Argentina, a not-guilty verdict may provoke denunciations that the justice system is an "accomplice of the criminals."

In addition, we reasoned that the "leading cases" we address must reflect the principal human rights problems and priorities in our society. In other words, if our ultimate goal is to simultaneously critique and strengthen the judiciary through litigation, there must be an explicit political agenda behind the cases we take to court. In this sense, CELS is focusing on several issues that impact many Argentine citizens but which have traditionally been left out of human rights organizations' agendas. Among the most important are failures by government agencies to assure access to fundamental economic and social rights like education and healthcare. Discrimination based on gender, ethnicity, religion, sexuality or disability is also a major problem. Misconduct by security forces is also a serious issue, including police killings, abuse of authority and rampant corruption.[8]

CELS has handled a series of leading cases dealing with police corruption and misconduct. One such case is that of José Luis Ojeda, who was tortured while in police custody. After reporting these abuses, he was harassed by the Federal Police, brought in on arbitrary charges, and even experienced an attempt on his life. Though the charges against Ojeda have been dropped, the case has not been fully resolved. But the publicity surrounding this case sensitized public opinion to the long-standing problem of police abuse of authority, and became a key element in defeating a bill presented by the Executive that would have extended the period an individual may be held by police before being arraigned from 24 hours to seven days.

The case of Martín Follini highlighted the arbitrary nature of police conduct. Follini, wearing a T-shirt suggesting that President Menem was corrupt, was detained as he tried to enter a public event where Menem was scheduled to speak. Citing their right to detain people while "checking their identity"—an emergency measure that has become overused by police to harass citizens—police officers brought Follini to the police station. After determining that Follini had no police record, he was let go. When he returned to the event, he was detained again by the same police, again citing their right to check his "identity." CELS won the case: The police officers were convicted for the illegal privation of liberty, establishing an important precedent in the area of police misconduct.

Other cases have been aimed to secure the right of citizens to obtain information on government activities. One such case involved a CELS researcher, whose request for information from the Federal Police regarding the number of people arrested during a one-year period was never answered. CELS presented a writ of relief, which was accepted by a lower court, but the state appealed the decision to the Supreme Court. The latter finally validated the lower court's decision that the police must provide the information. This case was particularly important: It was the first time the courts established jurisdiction over a question about the right to information—a key issue in Argentina, where government secrecy is the order of the day.

Another very significant case is that of Carmen Lapacó of the Mothers of the Plaza de Mayo and a founding member of CELS. In 1995, Lapacó went before the courts claiming that she had a right to know the ultimate fate of her disappeared daughter based on the "right to truth" recognized by the Inter-American Court on Human Rights. The Lapacó case opened a new door in the struggle against impunity, and numerous other cases were opened in several provincial courts throughout the country. This case was appealed all the way to the Supreme Court, which ruled that such issues should not be tried in criminal courts. CELS took the Lapacó case to the Inter-American Commission on Human Rights (IACHR), which led President Menem to agree in 1999 to sign an "amicable settlement" recognizing citizens' right to obtain the truth about the disappeared. This gave renewed impetus to the provincial court cases, which continued their investigations despite the Supreme Court ruling.

In the arena of social and economic rights, an important leading case is that of Mariela Viceconte, who sued the state for failing to manufacture the vaccine against Junín hemorrhagic fever, a common disease in the plains region where she lives and works. CELS accused the Argentine state of failing to comply with the UN International Covenant on Economic, Social and Cultural Rights, which mandates states to seek solutions to these types of illnesses. The suit was accepted by a federal court, which ordered the government to manufacture the vaccine within a year.

As in the Lapacó case, when all national routes are exhausted and satisfactory resolution to the case has not been found, CELS' legal team presents cases before international tribunals. For example, we have taken the case of the bombing of the Argentine Jewish Mutual Association (AMIA) before the IACHR, alleging that the Argentine state failed to exercise due diligence in investigating the incident and that the security forces cooperated with the perpetrators of this terrorist attack. Another case we brought before the Inter-American Commission deals with the environmental contamination of the ancestral lands of an indigenous community in northwestern Argentina caused by a provincial government construction project.

The effort to promote and protect human rights via a strategy of legal activism has contributed to a broadening of the concept of "human rights." Once that phrase dealt only with the crimes of the dictatorship, or with civil or political rights. Now, economic and social rights are also on the table. Older demands for political democracy have also been reinterpreted as legal demands for human rights. Just as the trial of the former junta members was a way of bringing the struggle against military coups and the systematic repression of Argentine citizens during the dictatorship into the domain of the courts, other rights-related issues are now being fought for on a legal terrain. By encouraging a broader understanding of human rights—and of the role that the courts can and should play in promoting and protecting human rights—the legal activism of groups such as CELS represents a useful, effective strategy to strengthen the rule of law, a precondition for overcoming the limited nature of Latin American democracy.

Martín Abregú is director of the Center for Legal and Social Studies (CELS), a nonprofit organization dedicated to human rights defense and promotion based in Buenos Aires. Translated from the Spanish by NACLA.

1. See Nunca Más: Informe de la Comisión Nacional sobre la Desaparición de Personas (Buenos Aires: EUDEBA, 1999, Fifth Edition); and Eduardo Luis Duhalde, El estado terrorista argentino: Quince años después, una mirada crítica (Buenos Aires: EUDEBA, 1999).
2. Derechos humanos en la Argentina: Informe anual 2000 (Buenos Aires: EUDEBA-CELS, 2000).
3. See Carlos Nino, Radical Evil on Trial (New Haven: Yale University Press, 1996); Carlos Acuña and Catalina Smulovitz, "Militares en la transición argentina: Del gobierno a la subordinación constitucional," in Carlos Acuña et. al., eds., Juicios, castigos y memorias (Buenos Aires: Editorial Nueva Visión, 1995); Marcelo Sancinetti, Derechos humanos en la Argentina post-dictatorial (Buenos Aires: Lerner Editores, 1988); and Jaime Malamud-Goti, Game Without End (Tulsa: Oklahoma U. Press, 1996).
4. Juan Méndez, Guillermo O'Donnell and Paulo Sérgio Pinheiro, eds., The (Un)Rule of Law and the Underprivileged in Latin America (South Bend: University of Notre Dame Press, 1999).
5. See Nino, Radical Evil; Acuña and Smulovitz, "Militares"; Sancinetti, Derechos humanos; Goti, Game Without End; and Hugo Frühling, "From Dictatorship to Democracy: Law and Social Change in the Andean Region and the Southern Cone of South America," in Mary McClymont and Stephen Golum, eds., Many Roads to Justice: The Law-related Work of the Ford Foundation Grantees Around the World (New York: Ford Foundation, 2000).
6. Martín Abregú, "La aplicación del derecho internacional de los derechos humanos por los tribunales: Una introducción," in Martín Abregú and Christian Courtis, eds., La aplicación de los tratados sobre derechos humanos por los tribunes locales (Buenos Aires: Editores del Puerto-CELS, 1997).
7. See Manuel Garrido, "Informe sobre Argentina," in Jorge Correa Suti, ed., Situación y políticas judiciales en América Latina (Santiago: Universidad Diego Portales Escuela de Derecho, Serie Publicaciones Especiales No. 2, N.D.).
8. See La inseguridad policial: Violencia de las fuerzas de seguridad en la Argentina (Buenos Aires: EUDEBA-Human Rights Watch-CELS, 1998).

Tags: Argentina, human rights, dictatorship, justice, impunity, Mothers of Plaza Maya

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