nunca más. the politics of transitional justice in argentina and uruguay 1983 - 2010. francesca...

Francesca Lessa, Ph.D. (LSE), Latin American Centre, University of Oxford TC 24 Global Justice, Thursday August 18, 2011

Nunca Ms The Politics of Transitional Justice in Argentina and Uruguay 1983 - 2010

TC 24 Global Justice WISC Convention 2011, Thursday 18 August 2:15 4:00 PM

AbstractArgentina has been aptly defined as a 'global protagonist' in transitional justice (TJ), because of its pioneering innovations with accountability for past crimes (Sikkink, 2008). Conversely, Uruguay chose a path of amnesty and oblivion in coming to terms with its own past evils. This paper contends that three phases in TJ can be identified in Argentina and Uruguay. In the first, these countries adopted opposite approaches: Argentina established a truth commission and carried out prosecutions, while Uruguay selected oblivion and silence. The second phase saw Argentina and Uruguay's positions becoming increasingly aligned. Initially, both societies witnessed a silencing of any discussion on the dictatorship. Later on, by the late 1990s, they slowly began to warm up to questions of accountability. Only in the early 21st century, these issues forcefully returned to the social and political arenas. During this third and current phase, Argentina and Uruguay adopted similar stances, attempting to explore their pasts from the perspectives of truth, justice and memory. The progression among these phases is explained with reference to several factors, including Presidential leaderships; the attitude of the armed forces; the role of human rights activists; and finally, developments on the international stage.

Introduction In 1983, Argentina was one of the first countries to emerge from military rule at the dawn of the era of transitional justice (hereafter TJ). Kathryn Sikkink aptly defines Argentinas human rights trajectory as one from pariah state to global protagonist, stressing the remarkable evolution from the years of systematic disappearances in the 1970s to Argentinas pioneering developments in accountability for past crimes . Conversely, Uruguay a model of democracy in the region chose a completely different path in confronting the ghosts of the past upon democratization. Uruguay's choice of amnesty and oblivion so strikingly different from Argentinas constitutes an interesting comparison, when juxtaposing various ways to confront past evils. This fundamental difference begs the question of why almost opposite approaches were adopted when these two countries lived through similar military regimes and experienced comparable types of human rights abuses?

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Uruguays experience with TJ was very much Uruguayan: negotiations, pacts, concern with stability and governability, and slow and conciliatory attitudes are enduring features of this tiny state. Conversely, Argentina required a clear break with its long heritage of military interventionism begun in 1930. Former President Ral Alfonsn clearly underscored the importance of establishing new foundations for an authentic democratic system, generating new institutions, routines, and novel ways for people to learn to live together . This paper contends that three phases of TJ in Argentina and Uruguay can be identified over the past thirty years. In the first, (Truth and Justice vs. Silence, mid to late 1980s), Argentina and Uruguay adopted almost opposite approaches. Argentina, under President Alfonsn, initially confronted the inheritance of human rights violations head on, establishing a truth commission and initiating prosecutions. Uruguay, instead, followed the lead of President Sanguinetti, who successfully imposed oblivion and silence regarding the past. In the second stage (Fighting Silence, covering the 1990s until the beginning of the 21st century), Argentina and Uruguays positions became increasingly aligned: by the early 1990s, a mantle of amnesia had been firmly put in place regarding the years of military rule and political repression. Or so the respective governments wished: against this backdrop, human rights activists continued to work relentlessly to ensure that the past remained, in some way, present. The third and current phase (The Present Challenge of TJ) began in the 21st century, when issues of accountability forcefully returned to the social and political arenas. At this time, Argentina and Uruguay started exploring their recent past once again, through the perspectives of truth, justice, reparations and memory but problems and controversies still remained. The paper further wishes to contend that the evolution of TJ in Argentina and Uruguay can be explained with reference to several factors. This explanatory framework encompasses social, political, historical and institutional variables that play a role in the materialisation and later development and evolution of policies of TJ. The framework is divided into three temporal phases (pre-, during, and post-transition) that reflect the key stages of transitions to democracy, and encompasses several factors and actors that have the potential to shape and influence the TJ path to be adopted. Specific national, regional and international actors and influences are also taken into consideration, in endeavouring to explain the variation of TJ initiatives over time. Here is a schematic summary of the framework and the key factors to be considered:Table 1 - Explanatory Framework

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Pre-transition phase Nature of authoritarian rule and repression Nature of the previous regime; Duration; Nature of repression and crimes.

Transition phase Processes of transition

Post-transition phase New political, legal and institutional settings Influence, power and interests of specific actors: new government; previous regime; civil society groups; international actors; judiciary.

Typology of transitional processes: Collapse; Negotiation; Transformation. Typology of democratisation processes: Continuous; Legal breakdown/rupture; Legal restoration.

In the paper, I will only refer to six factors from the framework, namely the process of transition, especially the way in which the authoritarian regime came to an end (collapse; negotiation; transformation); differing Presidential leaderships and, consequently, the diverse approaches to the question of the past; the attitude of the armed forces that, despite being politically defeated, retained a significant amount of power and, with this continuing influence, attempted to control TJ initiatives, enjoying more success in the early years and less so as time went by; human rights activists were constant and persistent actors that, notwithstanding defeats and numerous obstacles, kept the flame of truth and justice burning over the decades; the role of the judiciary, capable of influencing the momentum towards accountability or restraining it; and, finally, the developments on the international and regional spheres regarding accountability. The paper aims to suggest that TJ policies, their emergence and evolution, constitute rather convoluted and unpredictable processes. Several variables and actors come to play a role in the development of TJ mechanisms over time. In fact, the progression of TJ can witness triumphs and failures, pauses and sudden developments. TJ policies rarely follow clear and conventional paths. Diverse mechanisms are generally employed at different times and their adoption, as well as variation, reflects internal political, historical and social dynamics unique to each particular context. Nonetheless, external actors and influences have also to be taken into account. To fully comprehend the politics of TJ, factors and actors on at least three levels (local, national, international) have to be taken into account. 1 Why Argentina and Uruguay?

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The selection of Argentina and Uruguay as case studies for this article is based upon two criteria: the type of human rights violence that was experienced, and the saliency of the politics of transitional justice and memory. Argentina and Uruguay lived through similar repressive military governments inspired by the national security doctrine in the 1970s and early 1980s. These regimes did however differ in terms of the length and the nature of the repression. In both, nonetheless, the human cost of repression was unprecedented. In Argentina, the total number of enforced disappearances ranges between 9,000 to 30,000; some 500 children were abducted along with their parents or born in Captivity, later illegally adopted by members of the security forces; another 12,890 people were jailed for political reasons; 2,286 extra-judicially executed; and an estimated 250,000 forced into exile. In Uruguay, instead, around 300,000 people were exiled; 116 people murdered; 172 were forcefully disappeared (mostly in Argentina); 60,000 arrested; and approximately 6,000 were long-term political prisoners . When looking at the accountability policies that Argentina and Uruguay employed, different TJ mechanisms were employed. Argentina is generally considered a regional and global protagonist in TJ, whereas Uruguay is more of a laggard. Interestingly enough, however, their positions are nowadays closer than ever before. This is a trajectory that is definitely worth exploring. Though Argentina and Uruguay are close neighbours, a comparison between the two has not been attempted in relation to questions of TJ. The Argentine case has often been likened to Greeces experience in 1974 - see e.g. . Uruguay has conversely been studied generally together with Chile, as they share long histories of democracy in the region, as well as negotiated exits from military rule - see e.g. . Argentina and Uruguay however do feature together in some comparative collections on the Southern Cone. See e.g. 2 Phase I: Truth and Justice vs. Silence, 1983 to 1990

Argentina has been a key protagonist in TJ, for pioneering several mechanisms (such as truth commissions and truth trials), and employing a wide variety of accountability policies between 1983 and present. Those include the payment of reparations to the victims of state terrorism and two waves of trials, firstly in the mid-1980s against those with maximum responsibility (the Commanders of the military juntas), and twenty years later, with the reopening of the trials closed off by the amnesty laws of the late 1980s. On the other hand, Uruguay has been more of laggard in questions of accountability; yet, this unjust perception is challenged later on. Argentina and Uruguay emerged from military rule within just over a year of each other: December 1983 versus March 1985. Uruguay has always been a keen observer of events in Argentina and a strong relationship exists between the two (interview with Carlos Demasi,4


28 August 2008). This is an important element for understanding TJ in Uruguay as, in framing its own approach toward accountability, Uruguay did keep a close eye on what was occurring just across the river Plate. Yet, this contagion effect should not be overestimated since, particularly in this early phase, the spill-over from Argentina into Uruguay was rather limited . From the early days, it was already apparent that Uruguay was set in its path of amnesty. Events taking place in Argentina, particularly the military rebellions of the late 1980s, were neatly used by President Sanguinetti to prove the point that that his approach to the past was correct. But this was, more than anything else, a useful coincidence for Sanguinetti not the reason behind already agreed upon policies. Several factors account for the diverse initiatives of TJ in Argentina and Uruguay. Processes of TJ are rather complex and likely to continue for several years, if not decades. For these reasons, mono-causal explanations are often insufficient; instead, to acquire a comprehensive understanding of TJ, various factors and actors need to be explored. Argentina The dynamics of the first phase of TJ can be unpacked by referring to the nature of Argentine transition; the legal strategy adopted by President Alfonsn; the role of human rights activists; and, the initial weakness of the armed forces. The mode of transition is an essential factor which makes the Argentine case stand out in the region, as the military junta retreated from power in what could be defined as a peculiar collapse. In fact, although there were no negotiations like in Uruguay or in Chile, the military was not totally defeated either. Indeed, over fifteen months passed between the defeat in the Falklands War in June 1982 and the take-over of the democratically elected president in December 1983. This interval shows how the armed forces still possessed sufficient power to supervise the process of democratization, while organizing quite an orderly retreat. Simultaneously, politicians were unable to fully exploit the situation of crisis, supporting instead the last junta of General Bignone that implemented a controlled and limited decompression of the dictatorship (Agero, 1998; Lpez, 1994). Many scholars and human rights activists agree that the Falklands defeat only exacerbated an already existing situation, in which the inefficiencies of the regime were already under the spotlight (interview with the Center for Legal and Social Studies, CELS, 30 August 2007). The Falklands debacle, combined with an economic crisis, the regimes lack of internal legitimacy, and international denunciations of human rights abuses, favored the development also of social mobilization (even by those that initially had supported the dictatorship), which forced the military to accept free elections (interview with the Argentine Forensic Anthropology Team, EAAF, 24 August 2007). The Falklands War, in

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the words of Pion-Berlin, was not the cause of the military downfall, but acted as the catalyst of a pre-existing situation . This unusual end to the regime is an essential building block for the TJ policies initiated since 1983. For the academic Catalina Smulovitz, the adoption of a legalistic approach to the question of the past is totally related to the exit from military rule. Indeed, the collapse of the regime permitted the selection of this legalistic path and its strengthening over time (interview, 23 September 2008). Furthermore, national elections were won by the candidate who had demonstrated the greater commitment to human rights. While the Peronist Candidate talo Luder stated that he would respect the amnesty law enacted by the outgoing junta, Alfonsn promised instead to investigate human rights violations . Human rights were at the heart of Alfonsns electoral campaign, because he believed that Argentina could not achieve a full recovery without providing answers to the crimes of the military: he strongly argued that democracy could not be restored on the basis of immorality. This path of justice was innovative not only in Argentina but Latin America more broadly, where impunity and amnesia had traditionally been the norm. Alfonsns victory was linked to his electoral platform and the promise of prosecuting the military. Alfonsns personal commitment to human rights was fundamental: he had been a founding member of the Asamblea Permanente por los Derechos Humanos (Permanent Assembly for Human Rights, APDH), established in 1975, to respond to systematic human rights violations, and he had defended political prisoners throughout the dictatorship. As Pion-Berlin rightly suggests, had another candidate won, accountability policies would have been rather different (Pion-Berlin, 1993). Alfonsn introduced the idea of a judicial revision of the past upon transition; this predated democratization itself given that, back in February 1982 when the junta was looking for a negotiated exit from power (conditional on a commitment not to carry out revisionism), Alfonsn already believed that the judiciary could not refuse to provide answers to the question of the disappeared (interview with Andrs DAlessio, 17 September 2008). The selection of a legal strategy was facilitated by the existence of organizations, like CELS and APDH, which had adopted such a perspective on questions of human rights already during military rule. Furthermore, several lawyers, such as Eduardo Rabossi, Carlos Nino and Jaime Malamud-Goti (that later became presidential advisers) had similarly worked on human rights from a legal standpoint (interview with Graciela Fernandez-Meijide, 17 August 2007). Alfonsns legal strategy had four elements. First, the repealing of the military juntas selfamnesty law to enable prosecutions, achieved in December 1983. Second, equally condemn state terrorism and anti-state political violence: in fact, Presidential decrees 157 and 158 of December 1983 respectively ordered the trial of seven guerrilla leaders for homicide, illicit association, public instigation to commit crimes, apology of crime and other attacks against6


public order, and that of nine military commanders for homicide, unlawful deprivation of freedom and torture. Third, prosecutions would be carried out by the military itself, a policy of self-judgment or self-purification to rehabilitate the institution into the democratic arena. Lastly, trials were to be restricted in duration and scope to officers in a position of command, by applying the concepts of due obedience and the three levels of responsibility. The proposal to distinguish between different degrees was Jorge Sabatos (later State Secretary for Foreign Affairs and son of Ernesto Sabato that chaired the CONADEP), and was perceived as a way of reconciling demands for truth and justice from society and consolidating democracy at a time when the military still had enough power to destabilize the new government (email interview with Ral Alfonsn, 7 November 2008). Different responsibility had to be attributed to: those who had planned, had the supreme authority over the repression and given the accompanying orders; those who, regardless of whether they were acting in compliance with orders, had committed atrocious or aberrant acts; and, finally, those who, in the situation of general confusion and compulsion, complied with orders perpetrating lesser offences (Roehrig, 2002:61). Only offenders falling into the first two categories would be prosecuted. Despite the government possessed a rather clear vision on how to achieve limited accountability, the eventual outcome would differ substantially from this original idea. Upon taking over, President Alfonsn also established the extra-parliamentary Comisin Nacional sobre la Desaparicin de Personas (National Commission on the Disappearance of Persons, CONADEP). Created by presidential decree 187 and part of the Interior Ministry, the Commission was to clarify the fate of the desaparecidos. Composed of highly reputable public figures, the CONADEP worked for nine months collecting testimonies and inspecting former detention centers. In September 1984, it presented its findings to the President, and a summary of its conclusions was later published, in November 1984, as the famous Nunca Ms report. The Commission stressed how the military implemented a strategy of terror, systematically violating human rights with absolute power and impunity. As the first truth commission to ever complete its final report and receive widespread international attention, the CONADEP attracted both criticism and praise. Both the Abuelas de Plaza de Mayo (Grandmothers of May Square, hereafter Abuelas) and the Madres de Plaza de Mayo (Mothers) had instead favored a bicameral commission, since the latter would have had more power to investigate (interview with Abuelas, 3 September 2007); many human rights groups saw the CONADEP instead as an attempt to limit investigations. In particular, the Mothers were the only organization to request its members not to give testimony before the Commission, although some did so in the end (Crenzel, 2006). The

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Executive feared that a bi-cameral commission could trigger possible adverse reactions and rebellions from the armed forces (Fernandez-Meijide interview). The work of the CONADEP gathered a wealth of information, making it public and for society to know the scope of the unprecedented violence of state terrorism. Even though its mandate was clearly limited only to disappearances, its work helped construct a corpus of evidence that would later be used in the Trial of the Commanders (interview with Emilio Crenzel, 18 August 2007). The 1984 CONADEP, together with the 1985 Trial, realized in practice the electoral promises on human rights of President Alfonsn. The CONADEP was particularly instrumental in lifting the veil of secrecy and denial that surrounded military repression: a vast majority of Argentines is now familiar with the events of the repression and the average Argentine has a good knowledge of what disappearances and clandestine detention centers were (interview with Memoria Abierta, 23 August 2007). On the justice front, after failed attempts by military courts, the Buenos Aires Federal Appeals Court began prosecuting the nine military commanders in September 1984, and reached its verdict in December 1985, when each commander was found responsible for the crimes committed by members of his service-branch; sentences ranged from life imprisonment for General Videla and Admiral Massera, to detentions of various lengths for the other defendants. The 1985 Trial of the Commanders represented a noteworthy policy success for Alfonsn: the trial was unprecedented in Latin America, where amnesia had traditionally been the dominant approach. Together with the CONADEP, the Trial helped establish a global truth on the illegal methods of repression, disseminating information about its secret system and methodology, and endorsed the accounts of survivors (DAlessio interview). The Trial constituted an emblematic moment in Argentine history, having produced parallels with Nuremberg and acquired an almost mythical dimension as the founding scene of the new Argentine democracy (interview with H.I.J.O.S., 1 September 2007). Nevertheless, critiques do exist. The most outspoken are the Mothers from Asociacin Madres de Plaza de Mayo (Mothers of May Square Association, Asociacin-Madres) whose position on accountability is extremely retributive, as they want every single person who participated in the repression prosecuted. Abuelas call instead attention to the fact that the armed forces were never prosecuted for usurping power, but only for the crimes perpetrated after the takeover itself (Abuelas interview). Jaime Malamud-Goti (senior presidential advisor between 1983 and 1987), interestingly indicates that the 1985 Trial, and human rights trials more generally, recreate the bipolar interpretation of the world of guilty versus innocent that also prevailed during state terrorism. Accordingly, by only apportioning blame onto the security forces, trials inevitably over-simplify history, under the pretense8


that no middle ground exists between innocent and guilty . These two categories eclipse more nuanced understandings, for failing to take into consideration the social and political context that contributed to the state of affairs during state terrorism (interview with Jaime Malamud-Goti, 3 September 2007). In this way, most Argentines do not have to accept that terror had originated from the very entrails of their community. The governments strategy of limited prosecutions was doomed to failure; by 1986, thousands of criminal charges were being presented and prosecutions risked spiraling out of control. Consequently, the Executive decided to intervene, firstly through the April 1986 Instructions to Military Prosecutors which were intended to radically reduce the number of proceedings and speed up trials . This move backfired, as the civilian judiciary took over the case loads from military courts. In this context of increased military restlessness and rising charges, the Executive adopted two laws to end prosecutions. First, the Full Stop Law, adopted in December 1986, established a 60-day deadline for summoning alleged human rights offenders, otherwise all cases would be extinguished after 22 February 1987. Its enactment had a boomerang effect, triggering judicial activity: while it had been hoped that additional indictments would be minimal (30 to 40), by the deadline almost 500 new cases had been filed (Roniger, 1997). The move had totally backfired on the government. In the aftermath of the Holy Week military uprising, the government then enacted the Due Obedience Law in June 1987 which effectively halted prosecutions, by instituting the legality of following orders; rape, economic crimes and disappearance or identity forgery of minors were, however, not covered by the law. The fact that the Law was adopted so soon after the rebellion strengthened the perception that it had been a concession to the military (Pion-Berlin, 1997). It goes without saying that the Full Stop and Due Obedience laws, despite their nice wording, constituted amnesty laws under cover and were forcefully rejected by human rights activists. The passing of these laws clearly reflected military dissatisfaction and the difficulty of the government to continue progressing with the trials (interview with human rights lawyer, 22 August 2007). By the late 1980s, the armed forces had partly recovered from their initial situation of political and military defeat. While the military had emerged from military rule vertically broken because of inter-branch disagreements and power struggles, the human rights trials of the mid-1980s - seen as attacking the military's corporate identity forced the armed forces to emerge from their previous state of shock . The three military rebellions of 1987 and 1988 successfully resulted in the end of judicial proceedings. Still, the uprisings also reflected a horizontal fracturing within the institution, as junior officers believed they were

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facing the brunt of prosecutions, while senior-level commanders were seen as escaping justice. Alfonsn was forced to resign six months ahead of schedule, in July 1989, due to the poor state of the economy. A few months beforehand, events at La Tablada military base had boosted military and right-wings suspicions of connections between left-wing terrorism and human rights, strengthening the position of the armed forces while weakening the governments image and the case for justice . In such a context, newly elected President Menem (1989-1999) enacted two sets of presidential pardons that reversed most of the advances achieved under the previous administration, setting Argentina on a similar footing to Uruguay. Prima facie, the pardons produced a situation of complete impunity. Still, the truth of the trials persisted and the pardons could not invalidate the crimes committed, but only suspend punishment (Gonzlez-Bombal, 1995). Moreover, even though the pardons did suspend the punishment received by military officers, the situation of Argentina remained fundamentally different from that of other countries where, from the very outset, amnesty laws prevented any investigation or judgment (Acua and Smulovitz, 1995). Uruguay Uruguays trajectory in TJ is very Uruguayan, reflecting the countrys traditional culture of reaching consensus. The first phase of TJ, or better said of its lack thereof, resulted from a unique combination of factors: the negotiated nature of transition; the policy of oblivion endorsed by the democratic government; the low profile and limited weight of human rights groups; and, the residual power of the armed forces. Uruguay is a country of pacts, given its long tradition of negotiations and agreements (interview with Pilar Elhordoy, 11 September 2007). This tradition was reproduced in the early 1980s, when the unique and long dialogues between the armed forces and the political parties produced a different transition compared to Argentina (interview with Julio M. Sanguinetti, 21 September 2007). While the Parque Hotel negotiations between May and July 1983 did not prosper, a year later the three Commanders of the Armed Forces and representatives of the Colorado, Frente Amplio and Civic Union parties signed the Navy Club Pact in August 1984. For President Sanguinetti, the Pact had been an excellent outcome, a fortunate agreement that produced a democracy free from institutional limitations or military shackles (ibid.). The Pact stands at the heart of Uruguays transition and directly affected the way in which the question of the past would later be addressed. The Pact was not particularly innovative, as it simply reinstated the political system that existed before the authoritarian parenthesis and the 1967 Constitution. Much mythology however surrounds the Pact, especially the question of whether the amnesty for the military was10


agreed then. President Sanguinetti vehemently denied any talk of amnesty during the 1984 negotiations, pointing to the lack of denunciations against the military at that time (ibid.). The President contended that an important question was what to do with political prisoners; that matter, too, was however not discussed, as it could have affected the outcome of the negotiations. General Medina (the Army Commander sitting at the discussions) similarly stated that we all knew that the issue of revisionism and trying the military was pending. We all knew as well that if these issues were placed on the negotiating table things would be complicated and we were all extremely interested in finding a way out . Human rights activists believe instead that judicial protection was agreed at the Navy Club, and later crystallized in the Expiry Law. The truth on the Navy Club discussions will probably never be known. Yet, it is important to recognize that the logic of negotiated transitions presupposes concessions and silences from both sides (interview with Uruguayan academic, 26 August 2008). Further, the Pact generated some specific conditions, such as the proscription of Blanco leader FerreiraAldunate at the 1984 elections, that later converged in the amnesty law and complicated the revision of the past. The Pact effectively restored the previous political system and implied a tacit recognition of the militarys institutional autonomy, legitimating them as political actors. It was therefore highly unlikely that the future executive would break the rules of the game, promoting the trial of one of the parties to the pact (Brito, 1997). Unlike Argentina where President Alfonsn had won the elections because of his human rights manifesto, the election of Julio Mara Sanguinetti limited the chances of achieving justice from the very beginning. In addition, Uruguays transition was a restoration, since the political regime that had existed before the authoritarian parenthesis was basically reestablished . The room for change and innovation was therefore restricted. Furthermore, unlike President Alfonsn who wished to mark a clear break with the past, President Sanguinettis emphasis was on the cambio en paz (peaceful change). Accordingly, radicalism or sudden changes were to be avoided. For the government, turning the page on the past and looking to the future was necessary to render effective the peace. The consolidation of democracy involved steering well clear of any revisionism of the dictatorial period, as demands for truth and justice would provoke the military and cause institutional destabilization . As Diego Achard highlights, the prevailing logic during transition and afterward was that of coexistence ; in fact, all the political leaders of the time (Sanguinetti, Seregni and Ferreira-Aldunate) were aware of the importance of governability to avoid internal conflict. Even Blanco leader Ferreira-Aldunate, upon being freed from imprisonment after the 1984 elections, promised to support democracy and work for governability, together with the winning Colorado administration (Demasi interview).11


On the justice front, President Sanguinetti initially stated that he would not undertake any official policies, but would neither prevent individuals from presenting cases to the courts . In the early months of his presidency, Sanguinettis main emphasis was on national pacification and the consolidation of democracy. In March 1985, Amnesty Law 15,737 released all political prisoners (except those that committed homicide for which a sentence review was granted), had provisions to facilitate the return of exiles and their social reintegration, as well as of those that had been unfairly dismissed under the dictatorship. Similarly to the government, none of the Uruguayan political parties had really taken up the banners of truth and justice, unlike what the Radical Party had done in Argentina (Brito, 1997). Yet, given the governments failure to advance on the question of the past, in April 1985, the Frente Amplio and the Blanco (the two parties most committed to human rights), set up two investigative commissions within Parliament, one on the disappeared and the other on the assassination of legislators Michelini and Gutirrez Ruiz in Buenos Aires in 1976.1 Although this was a significant initiative, these parliamentary commissions failed to produce a national truth and were unable to find conclusive proof of an institutional decision-making process which led to human rights violations. Additionally, the military neither responded nor provided explanations, and the reports were never officially announced or acknowledged by the Executive. On the contrary, the President disqualified their findings, stating that they neither clarified the authorship of the crimes nor produced credible conclusions (Brito, 1997). In spite of the lack of a government policy on accountability, as early as April 1985, denunciations of past human rights violations by victims and/or their relatives began to be presented to the courts. The Executive immediately ruled out Argentine-style trials, contending that the past was best left to the historians . Nonetheless, the question of an amnesty for the armed forces proved very controversial: between October 1985 and December 1986, three bills were presented to Parliament to limit or prevent prosecutions, but all failed to reach the required votes. By December 1986, 734 cases of past abuses were already under investigation by the courts and the military became increasingly restless. Unlike their Argentine counterparts, the Uruguayan military had entered the democratic phase with a large dose of residual power that allowed it to shape and directly influence the governments policy on past abuses. Additionally, the military enjoyed a close relationship with the government. With General Medina as defense minister from 1987, a sort of continuity was ensured, producing a feeling of a democracia tutelada (guarded democracy), a veiled but always present threat (Demasi interview). The military initially rejected the idea1

These were the Investigative Commission on the Situation of Disappeared People and Its Causes of 1985; and, the Investigative Commission on the Kidnapping and Assassination of National Representatives Zelmar Michelini and Hctor Gutirrez-Ruiz also of 1985. On these commissions, please see Lessa (2012a; 2012b).

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of an amnesty, for they believed no crimes had been committed. However as cases proliferated, the situation became increasingly unstable, as summoned officers made it clear that they would not show up at trials and would, in fact, resist any subpoenas to do so. Judicial summons, rumours had it, were being guarded by General Medina himself in his personal safe, underscoring how the military wanted a political solution to the question. Opinions vary as to whether there was an actual risk of a military coup; what is beyond doubt is that the government used this situation to enact the Expiry Law. For some, there was a chance of a technical coup if the military did not observe orders to appear before courts; others point to the possibility of a full-blown constitutional crisis between the military and the Executive . A situation of institutional stability did exist, together with the real possibility of the military disobeying to the judiciary and the President, by not complying with judicial orders. Law N 15,848 Derogating the Punitive Capacity of the State (hereafter Expiry Law), adopted by the Uruguayan Parliament on 22 December 1986, has shaped the evolution of TJ from the mid-1980s into the present. The Law consists of three chapters, dealing respectively with the prosecution of military and police officers; forced retirement of military personnel in 1974; and the role of civilian political institutions and armed forces in relation to promotion of officers. The essence of the Law is article 1, in which the state renounces to its right to prosecute members of the military and police forces for crimes committed before 1 March 1985, with the exception of economic crimes (article 2). The Law is similarly an amnesty under cover the word amnesty never being mentioned in its rather long name. The enactment of this Law directly responded to the above mentioned logic of stability, in forestalling possible military disobedience. Strikingly, both the Full Stop Law and the Expiry Law were adopted on the same day, 22 December 1986. For Sanguinetti, there was no distinction between types of violence and terrorism: therefore, after adopting the amnesty for political prisoners in 1985, the second law also had to be adopted, to avoid being discriminatory (Sanguinetti interview). For human rights activists, the adoption of the Expiry Law represented the defeat of hope and a sign that impunity had prevailed (interview with human rights activist from Mothers and Relatives of Uruguayan Disappeared Detainees, MFDDU, 29 August 2008). Over the last thirty years, the Expiry Law has continued to affect political life, constituting both a real and symbolic obstacle to the progress in accountability (interview with Ral Olivera, 30 August 2008). Unlike Argentina, the human rights movement in Uruguay developed rather late for several reasons. Amnesty International-Uruguay draws attention to the fact that the human rights13


movement did not exist until 1981, because the repression was seen as a political problem, not a human rights question (interview with AIU, 2 September 2008). Furthermore, Uruguay is an extremely secular society, in which the Catholic Church has little influence outside a limited religious sphere. Indeed, the traditional Colorado and Blanco political parties are secular and most allegiances in Uruguay are of a political nature . Additionally, the countrys geography and demography had enabled the armed forces to develop a deeply repressive and monitoring apparatus that persecuted and paralyzed all opposition. In fact, Uruguay was the closest approximation in South America of the Orwellian totalitarian state (Ibid.503). Finally, potential spaces for organized resistance had already been restricted or eliminated before the June 1973 takeover, and the repression remained strong until the very end of the regime. By the early 1980s, the first timid developments in human rights activism however occurred, with the establishment of the Peace and Justice Service (SERPAJ) in 1981 and of the Mothers and Relatives of Uruguayan Disappeared-Detainees (MFDDU) in 1983. Human rights organizations initially maintained a low profile, but in 1983, together with other civil society groups, played a key role in turning popular discontent into systematic mobilization against the regime, calling for democratization, respect for human rights and better standards of living (Markarian, 2005). During the first democratic government (1985-2000) human rights groups were fundamental in the fight for accountability, given the inability of the political class to find a suitable way of dealing with the past (Brito, 2001). It was in fact SERPAJ which, in March 1989, released the Never Again report. Despite lacking government support and military cooperation, and having limited human and financial resources, the report was far stronger than earlier parliamentary inquiries . In fact, until 2003, the report constituted the only document that offered a complete overview on the repression, collecting victims testimonies, and preserving them for the future (ElhordoyArregui interview). Another noteworthy initiative carried out by human rights organizations was the campaign to subject the Expiry Law to a referendum, by employing a provision in the Uruguayan Constitution (article 79) providing for referenda to be held if 25% of the electorate signs to support the initiative within a year of a contested laws promulgation. The Pro-Referendum Commission operated between 1987 and 1989, launching the famous voto verde campaign to gather the required signatures. The referendum was eventually held on 16 April 1989, when those casting the yellow vote were in favor of retaining the Expiry Law, and those voting green against the Law: the Law was retained with 57% of the votes. The loss at the ballot box represented a moral blow for all human rights and political militants (interview with Cristina Mansilla, 27 August 2008). The human rights movement would take years to recover, and the 1989 referendum marked the beginning of a decade of silence and complete impunity.14


Despite different starting points, by the early 1990s Argentina and Uruguay found themselves at a similar juncture. Both governments had succeeded in temporarily closing off the discussion on the past, limiting the advances in truth and justice. Still, national amnesia and silence would soon be challenged. By the mid-1990s, the mantle of silence would start to be lifted to reveal some shocking truths. The case of Uruguay is particularly interesting, as the Uruguayan model of transition had been considered exemplary. Yet, it rested on weak democratic foundations, for wishing to build the future on the basis of imposed oblivion.

3

Phase II: Fighting Silence, 1990s to the 21st century

The 1990s were a significant decade for accountability in both Argentina and Uruguay. The events that occurred were probably not as momentous or controversial as those of the 1980s, but they nonetheless constituted essential building blocks for the third and present stage of accountability. By the early 1990s, Argentina and Uruguay found themselves in similar situations in terms of TJ, as in both countries silence and impunity regarding the crimes of the past were firmly in place. Nonetheless, by the mid-1990s, Argentina and Uruguay would both begin to see a return of questions of truth and justice in their societies, a result of new national, regional and international dynamics and events. Argentina In clear contrast with Alfonsn's policies that, in spite of later setbacks, had endeavored to clarify the truth surrounding the disappeared and achieve limited justice, President Menem deliberately wished to close the books on the past. Menem favored a forgive-and-forget policy, in which the pardons were considered necessary to restore the faith of the armed forces in the government. In particular, the President's strategy of pardons constituted a trade-off in terms of relations with the armed forces: Menem was willing to forgive past crimes, but he would not tolerate present or future military disobedience, which would be punished (Acua, 2006). It has been estimated that 70 to 80% of the Argentine public did not endorse Menems policy of pardons; still, the President did not encounter a strong opposition from within the political and institutional system (interview with Hugo Vezzetti, 17 September 2008). More specifically, the trade-off with the armed force did work, as after the last carapintadas rebellion of December 1990, there were no further such incidents. During Menems first mandate (1989-1994), the subject of past crimes was virtually off the agenda and the Executive reduced political costs only advancing in areas of human rights deemed less confrontational, namely economic reparations and illegally appropriated15


children. In compliance with the 1992 decision of the Inter-American Commission on Human Rights (IACHR), the government adopted a comprehensive policy of economic reparations for the victims of state terrorism. Compensation was to be paid initially to the victims of illegitimate detentions and, later on, Law 24.411 provided for a sum of USD 224.000 to be paid to the lawful heirs of those that had disappeared or died during the repression. Finally, Law 24.321 of Absence by Forced Disappearance created this unprecedented legal status to resolve legal hurdles faced by the victims relatives. The question of reparations provoked fissures within the human rights groups, especially the two groups of the Madres (which had already separated in 1986). For the Asociacin-Madres, accepting compensation from the government represented blood money, for selling the blood of their disappeared children (Asociacin-Madres interview, 30 August 2007); this group even labels mothers accepting reparations as prostitutes. A Mother from the Madres de Plaza de Mayo Linea Fundadora that I interviewed, applied for reparations for her grandson, as both of his parents had disappeared (Linea Fundadora interview, 22 September 2008). Reparations proved a thorny issue, for raising not only ethical and moral issues on whether or not accepting the money, but also practical day-to-day issues of survival and guaranteeing the future of loved ones. In the early 1990s, the government directly supported the search for missing children sons and daughters born during the clandestine detention of their disappeared parents and that had been later appropriated through a network of illegal adoptions. The National Commission for the Right to Identity (CONADI) was created in 1992 to work jointly with the National Bank of Genetic Data, established in 1987. Nevertheless, it was the Abuelas, a group set up by twelve women in 1977 to identify and reunite missing children, the Living Disappeared or nietos (grandchildren) with their biological families, which was instrumental in this task. Abuelas estimate that approximately 500 children were appropriated during state terrorism of which 103 have so far recovered their true identity (May 2011). The legal basis for their work is the right to identity contained in the so-called Argentine chapters 7 and 8 of the UN Convention on the Rights of the Child. Since the 1994 Constitutional reform in Argentina, international law is directly incorporated in domestic legislation. Therefore, these chapters allow judges to order blood tests to establish the true identity of people who have doubts about their true biological background (Sikkink, 2008). Further, Abuelas could initiate prosecutions because the crime of child stealing was not covered by the Due Obedience Law . Unsolved cases of missing children are considered ongoing crimes, as the forgery of official documents -fundamental in the process of changing an identity- has not been corrected. The process has however been far from smooth. In the 1990s, Abuelas used to say that the grandchildren were growing up in the16


boxes and dispatches of the judges, because proceedings were left dormant for so many years (Abuelas interview, 11 September 2008). Yet, Abuelas took advantage of all the opportunities they had and a breakthrough happened in June 1998, when General (ret.) Videla was arrested and detained in connection with the abduction and false adoption of children; later on former Admiral Massera was similarly charged. In a landmark decision in October 1998, former generals Videla, Massera, Nicolaides and Bignone, and five lowerranking officers, were charged and jailed for 194 counts of illegal abduction and adoption of children in seven clandestine centers, leading to the first imprisonments of the 1990s (Brito, 2008). Since 1999, courts have been investigating a systematic plan by the military regime to illegitimately appropriate children, given this crime had not been included in the 1985 Trial (interview with Familiares de Desaparecidos y Detenidos por Razones Polticas, 18 September 2008). During Menems second term (1995-1999), concern with the recent past strongly reemerged, because of unforeseen events and the successes of human rights groups. First, the year 1995 produced a watershed event, instrumental in breaking impunity and silence, and helping restore the question of the past to the public arena. In March 1995, Navy Captain (ret.) Adolfo Scilingo broke the military pact of silence, publicly confessing to having participated in two death flights, throwing thirty people (alive but drugged) into the open seas. Although survivors of the repression and human rights groups had been denouncing these practices all along, until that moment people had not really believed the accounts of individuals that were perceived as subversives or their relatives (Abuelas and Familiares interviews). However, when a member of the military finally confessed, people at least believed him and accepted that what we had been saying for so long was indeed true (ibid.). This event triggered the mea culpa of Army Chief Balza of April 1995, in which the crimes of the repression were acknowledged, together with military responsibility, and the justification of due obedience was directly undermined. The Navy and Air Force Commanders soon followed, in May 1995, admitting unacceptable errors and horrors in the fight against terrorism (Verbitsky, 2005). In the aftermath of Scilingos declarations, a few other officers, confessed their role in the repression mostly famously Julio Simn and Alfredo Astz (see Payne 2008); nonetheless, less than a dozen officers talked about human rights violations and overall the pact of silence within the military institution remained strong. Moreover, throughout the 1990s, the armed forces closed their ranks around those officers facing trials for human rights abuses both in Argentina and abroad, visiting jailed colleagues in shows of solidarity. The public admission of human rights crimes from the military did, nevertheless, create a more favourable environment for progress in terms to accountability than in the early 1990s. Some key achievements were obtained in the late

17


1990s, a time in which human rights groups pioneered new ways and tools to challenge the wall of impunity. Three such initiatives are worth mentioning in some detail. The right to truth Human rights activists pioneered the right to truth (R2T). Building on the 1992 IACHRs report, which declared the Full Stop and Due Obedience laws incompatible with international human rights law, and recommended that Argentina adopted measure to clarify the facts of state terrorism, the CELS began working on the idea of the R2T in 1995. The argument was the following: although the amnesty laws blocked criminal proceedings, family members still retained the right to know the truth regarding their loved ones and society had the right to know the methodology of state terrorism. As a consequence of the friendly settlement in the Lapac case in the late 1990s brokered by the IACHR, Argentina agreed to accept and guarantee the right to truth, and exhaust all means to obtain information on the whereabouts of the disappeared. Consequently, since the late 1990s, truth trials have been ongoing throughout Argentina, but especially in Buenos Aires, Crdoba, and La Plata. Truth trials are judicial proceedings to establish the fate of the disappeared. There is no judgment, nor defendants, but people (relatives, military officers...) are summoned to appear and questioned as ordinary witnesses to gather information. Although the truth trials were not real trials, their function in recollecting testimonies and information was fundamental, particularly now that judicial proceedings have re-opened since 2006. Overall, the impact of truth trials has been quite varied, stronger in places like La Plata and Buenos Aires, and less so in other provinces. Nonetheless, they were important in keeping present the issue of past violence in the social and judicial arenas. Escraches Human rights groups never stopped their work for truth and justice, obstinately exploring all available avenues to make advances and resorting to creativity to open up new ways in the face of obstacles. The twentieth anniversary of the military coup in 1996 saw an enormous mobilization in Buenos Aires, demonstrating that support for the question of the past had always been latent, and was finally manifest again. At this time, an important event had been the establishment of a new organization, Hijos por la Identidad y la Justicia contra el Olvido y el Silencio (Sons and Daughters and for Identity and Justice against Forgetting and Silence, H.I.J.O.S.) formed in 1995 by offsprings of the disappeared, survivors, political prisoners, and exiles. This group brought fresh air to the human rights movement, new perspectives, and younger voices to the ongoing discussion on the recent past (Memoria Abierta interview). The arrival of a new generation into the human rights arena and their method of escraches were instrumental in fighting impunity and making society aware of18


the ongoing consequences of state terrorism. The escraches (public shaming events) exposed the comfortable life of impunity lived by former human rights violators; by doing so, escraches constituted a form of social accountability and justice at a time when impunity dominated in Argentina. Escraches brought to the fore the lack of justice and the persistence of impunity and vowing to continue until this situation would change, as embodied in a core slogan: si no hay justicia hay escrache (if there is no justice, there will be escrache). The unconstitutionality of the amnesty laws Creativity and innovation also surrounded the resolution of the question of impunity; here, too, human rights organizations were fundamental. Although the Chamber of Deputies had derogated the amnesty laws in March 1998 (preventing their future application), their effects remained regarding past judicial proceedings. Therefore, the CELS developed a pioneering legal argument, building on the situation of illegally appropriated Claudia Poblete, daughter of Jos Poblete and Getrudis Hlaczik who had disappeared in November 1978, a case opened by Abuelas in 1998. In 2000, the CELS asked the judiciary to investigate the crimes of enforced disappearance and torture of Claudias parents, demanding the amnesty laws be declared unconstitutional. The CELS pointed to a fundamental contradiction in the judicial system . The laws placed the judicial system in the untenable position of being able to find people criminally responsible for kidnapping a child and falsely changing her identity, but not for the more serious original crime of the murder and disappearance of her parents, which later gave rise to the crime of kidnapping . In March 2001, Federal judge Cavallo declared the unconstitutionality of the amnesty laws, for violating the Constitution and international obligations. This first-instance decision, however, only applied to the Poblete case because federal judges cannot to declare the unconstitutionality for all cases. A final decision on this question rested with the Supreme Court and would be finally resolved in June 2005. It was during this second phase that the international sphere became relevant in the fight again impunity in at least two ways. First, during the 1990s, Argentina receive international condemnation from both the IACHR and the UNHRC (UN Human Rights Committee) given that the amnesty laws and pardons were found to be incompatible with international human rights obligations. Second, the international sphere worked as a key tool to combat impunity at home. Given that many victims of the repression had double nationalities, their relatives decided to resort to foreign courts to achieve a measure of justice, Trials abroad were fundamental at this time given that domestic remedies were blocked. Trials took place in several European countries, Italy and Spain, but also France, Sweden and Germany. Resort to foreign trials brought to light a stark contrast between local and international19


justice: judicial proceedings in European courts, together with the Pinochet case in 1998, showed that prosecutions for crimes of the past were possible and achievable, notwithstanding the internal situation in each country. President De la Ra (1999-2001), who had promised co-operation on human rights issues in his electoral campaign, opted instead for a hands-off approach, continuing Menems practices of promoting officers accused of participating in the repression. Furthermore, the Executive adopted Decree 1,581 in December 2001, to reject all extradition requests relating to events that had occurred on national territory or territory under national jurisdiction . The December 2001 severe economic, social and political crisis temporarily overshadowed the issues of past crimes. Uruguay Three days after the 1989 referendum, President Sanguinetti stated that the transition was complete: at the ballot box, Uruguay had resolved all the problems relating to the dictatorship and was finally facing its future . Time would prove that nothing was further from the truth. As in Argentina with the pardons, the loss at the referendum reverberated well into the first half of the 1990s, inaugurating a second period of silence, after the one that had existed under the Sanguinettis presidency (interview with Servicio de Rehabilitacin Social, 19 September 2007). Indeed, the referendum was widely perceived as having forever sealed the question of the past. In Uruguay, voting is an extremely important affair and nothing is seen as having more legitimacy; back in November 1980, even the dictatorial government had accepted its defeat in the constitutional plebiscite and there were no attempts to manipulate the results. Similarly, the outcome of the 1989 referendum was accepted as something definitive, we lost and that was it (interview with member of Nuevo Espacio-Frente Amplio party, 13 September 2007). The feeling was brutal, a conviction that impunity was a natural state of affairs, that could not be modified and that you had to look to other things (ibid.). Whether the referendum was lost due to continued fear, or because people did not want to provoke the military, the confirmation of the Expiry Law was politically very strong, and represented a tremendous blow to all those that had supported the campaign for the voto verde. Between April 1989 and the end of 1996, seven long years of the most absolute silence ensued, in which the question of accountability simply did not exist in the public agenda (MFFDU interview). During the Blanco administration of President Luis-Alberto Lacalle (1990-1995), concern with past crimes was absent and there were no judicial denunciations. This situation of silence did not change even after the pronouncements of the IACHR and the UN Human Rights Committee that recommended effective measures to clarify past20


events and abuses, and locate those responsible . Although these reports had no immediate effects, repeated international criticism of Uruguay maintained a sort of spotlight on impunity and constituted at least symbolic condemnation of the impunity reigning in the country. More importantly, these pronouncements would later be cited in and drawn upon by local lawyers and judges. Despite the imposed silence and amnesia, the traumatic legacy of the past remained present within some social sectors, and affected Uruguayan culture too. Some popular singers even composed songs asking for the disappeared: Donde estn? Donde est Simon? Donde est Mariana?2 The subject was also present at the typical murgas during the summer carnival: this musical theatre, performed throughout neighborhoods in Montevideo, had traditionally been a form of popular resistance, particularly during the dictatorship. Concern with the recent past resurfaced during Sanguinettis second mandate (1995-2000); this happened not because of a governments wish but, rather, the Executive had to face several events both at home and abroad. By the mid-1990s, an environment more favorable to progress in accountability was starting to emerge, as a result of new local, regional and international dynamics as for the case of Argentina discussed above. First, the renaissance of this subject partly resulted from the shock with the military confessions. Scilingos declarations reverberated well beyond Argentina, mobilizing public opinion in Uruguay, given that many Uruguayan desaparecidos went missing in Buenos Aires while in exile or hiding there. Scilingos confession was particularly disturbing because some of the people thrown into the seas could indeed be Uruguayans (AIU interview). Furthermore, the confession exposed the dimension of the flights []; people suspected something more artisanal, not something like an extermination camp (Demasi interview). This new information immediately catalyzed Madres y Familiares NGO and the Michelini brothers, resulting in the mobilization of 20 May. In the early days of April 1996, when the acknowledgement of past human rights abuses continued to be muted, Rafael Michelini decided to call the first March of Silence via the press. The Senator called on people to march in silence in Montevideos main avenue to demand the truth, on May 20 [the date of the murders of Zelmar Michelini and Hctor Gutirrez-Ruiz in Buenos Aires in 1976]. Executives policy of national amnesia was crumbling down: the march was a success, as Montevideos main avenue was flooded with thousands of people demanding truth and

2

Where are they? Where is Simon? Where is Mariana? Simon Riquelo was the 20-day-old son of Sara Mndez and Mauricio Gatti; he was taken away from his mother when both were detained in Buenos Aires in July 1976; he recovered his identity in 2002. Mariana Zaffaroni-Islas was kidnapped in Argentina in March 1975 when she was 18-months-old with her parents who are still disappeared; she was located in Buenos Aires, recovering her identity in 1992 (Demasi & Yaff, 2005).

21


justice. The march is now a yearly tradition but the first constituted a significant breakthrough, being instrumental in unblocking the situation of silence. As concern with past human rights crimes was slowly returning, during 1997 several suggestions (a truth commission, mediation by the Catholic Church or direct negotiations between the military and former guerrillas) were proposed to uncover the fate of the disappeared. However, none of these proposals were accepted by the government, which responded by stating that the Expiry Law made further investigation impossible, accused those seeking information of intolerance and of threatening democratic values, or simply ignored them (Brito, 2001). The government's position was so intransigent to even reject the possibility of compensation to the victims relatives. The impact of the momentous arrest of Pinochet was significant in Uruguay, creating a new dynamic for human rights. For Ral Olivera of the Human Rights Secretariat for the Partido por la Victoria del Pueblo (Party for the Victory of the People, PVP), whose members account for a large number of victims during repression and was one of the few organizations working for accountability, the ghost of the dictatorships persisted until Pinochet was arrested. This event demonstrated that the king of dictators could be imprisoned without major consequences (Olivera interview). For others, the arrest of Pinochet has to be placed in the context of a regional-wide reactivation of the theme of the past that was already under way: the past was already coming back. This regional wave saw an environment increasingly more favorable vis--vis the consideration of the past. In fact, human rights activists across the region were by now conversing and exchanging lessons, and particularly adopting similar strategies, such as the identification of missing grandchildren and the circumvention of the amnesty laws, through exceptions like economic crimes and the prosecution of high-ranking officers (Elhordoy-Arregui, MFDDU interviews). The case of the Argentine poet Gelman was extremely important in placing the past back onto the national agenda. For almost twenty-five years, Juan Gelman had been relentlessly looking for his missing granddaughter, who was allegedly born in secret in 1976 and presumed to be in Uruguay. In 1998, Gelman contacted President Sanguinetti, asking for help to locate her and find information on the fate of his disappeared daughter-in-law, mother of Juans missing granddaughter (Demasi and Yaff, 2005). Sanguinetti denied that any of Gelmans missing relatives had disappeared in Uruguay and accused the poet of having carried out a campaign that had discredited Sanguinetti internationally . The question then seemed temporarily subdued. Unexpectedly, at the beginning of 2000, newly elected22


President Batlle announced to have located Gelmans granddaughter. Macarena was born after her mother had been illegally transferred from Buenos Aires to Montevideo in late 1976, and raised by a policeman and his family until she recovered her true identity. This case, together with that of Simn Riquelo (son of Uruguayan Sara Mndez who recovered his identity at the age of twenty-six in Buenos Aires) deeply moved Uruguayan society. The cases of missing children were particularly disturbing, bringing society to wonder: what had these children done to deserve such a fate? The government of Jorge Batlle (2000-2005) of the Colorado party, displayed for the first time a timid interest in finding a solution to the question of the disappeared, with the President talking about sealing peace forever between Uruguayans . The appearance of Macarena and the fact that the President agreed, for the first time ever, to receive a delegation from MFDDU, to initiate a dialogue on the disappeared in April 2000, marked the beginning of his presidency and was a very strong rupture in comparison to previous governments human rights policy (MFFDU interview). Batlles most important decision was the establishment of the truth commission, the Comisin Para la Paz (Peace Commission), the first official initiative of TJ fifteen years into the transition. Presidential resolution 858 mandated the Commission to receive, analyze, classify and collate information relating to enforced disappearances under military rule. Composed of political and religious figures, the Commission worked for three years and released its final report in April 2003. The report confirmed the disappearance of 26 Uruguayans in Uruguay, and over 130 in Argentina, Chile, Paraguay and Bolivia. It concluded that citizens that disappeared in Uruguay had been detained in official or unofficial actions and submitted to physical torture in clandestine detention centers, dying in the majority of the cases as a consequence of the torments received. The Commission received a mixed reception. For some, it was the first official initiative and instance in which the state recognized and assumed responsibility for the crimes of the repression. The Commission finally discussed openly and publicly the themes of disappearance, torture and the kidnapping of children, constituting in this way a significant change of attitude by the Executive. Nonetheless, serious critiques do exist. Human rights activists reject the commission's findings, pointing to how specific conclusions regarding the fate of some victims turned out to be incorrect. Further, the Commissions work was incomplete, as its mandate was limited to disappearances and did not include crimes like torture and prolonged imprisonment that in fact characterized the repression in Uruguay. The Commission did not meet international standards on truth commissions, having only been granted limited powers and resources; for having to rely only on voluntary testimonies unlikely from the military; and, for being unable to subpoena witnesses and lacking access to state archives. For these reasons, the human rights23


community widely perceived the Commission as yet another attempt by the Executive to close the theme of the disappeared, by providing a dose of truth to the relatives, and then moving on. For some, the Commission was in reality the product of a personal struggle amongst the leaders of the Colorado party, Batlle and Sanguinetti, a sort of political vendetta to challenge Sanguinetti who had always contended that you could not know what had happened (Elhordoy-Arregui interview). Overall, the acknowledgment of state terrorism through the Commission reflected the search for a possible truth, compatible with the goal of national reconciliation . This idea of possible truth simply tells you that the disappeared are no longer so, that they are dead or murdered, just to terminate the permanent crime, but no other information on who is responsible is then given (Olivera interview). Despite the significance of these criticisms, it should be noted nonetheless that it still constituted the first official TJ initiative in Uruguay, fifteen years since the transition, through which the state finally acknowledged the extent and brutality of its repression. It was during this phase too that, as a consequence of the successful strategy of loopholes to the amnesty law, that the first charge for past human rights abuses happened in Uruguay. In October 2002, seventeen years since re-democratization, former Foreign Minister Juan Carlos Blanco was charged with the unlawful imprisonment of disappeared teacher Elena Quinteros. During the 1990s, Argentina and Uruguays trajectory in TJ was a long but persistent process of awakening, a decade in which human rights activists employed any means at their disposal to challenge the silence and amnesia imposed from above. If in the 1980s the Executives could quite successfully control TJ policies, their predominance was increasingly challenged in the 1990s. In fact, various actors like human rights groups and political parties like the Frente Amplio worked relentlessly to prevent the question of the past from being obscured. Attempts at turning the page on the past have largely failed and, during the 1990s, each small achievement brought incremental success over time, constituting a precondition for further developments. The seeds that had been planted with difficulty during this decade would indeed bear fruit soon enough but not without problems.

4

Phase III: the Present Challenge of Transitional Justice

The current TJ phase has seen a rather similar pattern when compared to phase II. In fact, this phase has seen the consolidation of the trend towards accountability that had begun to resurface starting from the mid-1990s in Argentina and Uruguay. At present, we see how questions of truth, justice and memory have forcefully returned to the social and political24


arenas of both countries, but problems still persist. In fact, questions of accountability remain deeply divisive and debate is likely to continue into the foreseeable future in Argentina and Uruguay. Argentina In May 2003, the quest for accountability found an unexpected ally in President Nestor Kirchner, who surprisingly backed efforts to prosecute those responsible for the crimes of state terrorism . President Kirchner belonged to the generation of the Peronist party that had been severely repressed in the 1970s and together with his wife, current Argentine President Cristina Fernndez, hinted on several occasions to having been victims of the military regime . Kirchners human rights work was significant in four areas: the recuperation of former-detention centers into memory spaces; the removal from governmental positions of individuals linked to the dictatorship, the forced retirement of some generals and admirals, and the purging of the federal police; the re-opening of trials closed off since the late 1980s; and, international co-operation with extradition requests. President Kirchner created a more favorable climate for progress in truth and justice existed, by appointing three new judges to the Supreme Court and repealing Decree 1,581, which barred compliance with extradition orders. The President also ratified the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, obliging the government to punish such violations and making extradition possible. In August 2004, the policy of reparations was completed, compensating minors that had been victims of state terrorism. Exiles are the last group who remain to be compensated, but this seems unlikely in the near future. Kirchner worked to achieve the effective annulment of the amnesty laws. Relying on the precedent of Law 23,040 of December 1983 that had declared the self-amnesty law of the outgoing junta as null and void, Congress adopted Law 25,779 in August 2003, declaring the Full Stop and Due Obedience laws null, as if they had never existed. Though the amnesty laws had been derogated in 1998, declared unconstitutional in 2001, and annulled by Congress in 2003, a final decision on the constitutionality of their annulment rested with the Supreme Court . In June 2005, the Court upheld the constitutionality of Law 25,779 and declared the unconstitutionality of the Full Stop and Due Obedience Laws, claiming that they were contrary to international norms that have constitutional hierarchy in Argentina. The Court took into account recent developments in international human rights law, like the 2001 Barrios Altos case at the Inter-American Court of Human Rights, to conclude that the State was obliged to investigate and sanction crimes committed under the dictatorship,25


considered as crimes against humanity. Furthermore, some federal judges have considered Menems pardons to be null and void, removing the last legal obstacle to prosecutions. Some of these rulings were later confirmed by the Supreme Court in 2007 and 2010. Prosecutions are now well under way in Argentina. As of July 2011, 1.757 people are implicated in crimes against humanity, 269 have been charged, 187 condemned, 427 are currently under pre-trial detention, 15 have been acquitted while 276 have passed away. 3 In 2006, the first trials in twenty years were held. In August, Buenos Aires Federal Court 5 sentenced to twenty-five years imprisonment a former-police official for the illegal deprivation of liberty, aggravated by torture and the appropriation of a minor, committed against the Poblete-Hlaczik family. In September, La Plata Federal Court 1 condemned former-police official Miguel Etchecolatz to life imprisonment for the illegal arrest, torture and homicides of six disappeared, and the kidnapping and torture of two survivors . For the first time, the court contended that these crimes were part of the genocide that happened in Argentina between 1976 and 1983 . In October 2007, La Plata Federal Court 1 convicted the former-chaplain of the Buenos Aires provincial police to life imprisonment for involvement in murder, illegitimate deprivations of liberty and torture . In December, seven high-ranking members of Intelligence Battalion 601, including former-Army Commander Nicolaides, and a police officer, were sentenced to terms of between twenty and twenty-five years for aggravated illegitimate deprivation of liberty . In April 2008, in the first judgment of its kind, a couple was sentenced to eight and seven years imprisonment for the appropriation of Mara-Eugenia Sampallo, born to disappeared parents and stolen by an ex-Army captain who was sentenced to ten years . In Tucumn in August 2008, former-General Menndez and former-Governor Bussi were condemned to life imprisonment for the illegitimate deprivation of liberty, torture and disappearance of an ex-Senator ; Menndez, and other military and civilian officials were convicted for kidnappings, torture and extrajudicial executions occurred in 1977. Several key trials are currently ongoing, including in Buenos Aires the mega-cause of the Navy School of Mechanics, and various proceedings in the provinces, such as Chaco, Chubut, Crdoba, La Pampa and Salta. On December 21, 2010 Buenos Aires Federal Court 2 condemned, in the trial relating to the crimes committed at the former detention centres known as El Club Atltico, Banco, and El Olimpo, twelve individuals to life imprisonment and four defendants to 25 years in prison. The following day, a Crdoba court sentenced former military ruler Jorge R. Videla to life in prison for the torture and deaths of 31 prisoners in that Argentine city in 1976. In March 2011, the trial relating to Automotores Orletti detention centre concluded with one defendant condemned

3

State Terrorism Blog, updated by the CELS, accessed 27 July 2011, http://www.cels.org.ar/wpblogs/.

26


to life imprisonment, another to twenty years and the remaining two to twenty-five years. The defendants had faced charges of illegal deprivation of freedom, torture and homicide. The re-opening of judicial proceedings has generated mixed reactions. For H.I.J.O.S., trials constitute a chance not to be missed, (H.I.J.O.S., interview, 16 September 2008). For Abuelas, these prosecutions continue what was begun in the 1980s, and all the steps toward justice should be attempted given that a country without justice is neither serious nor real (Abuelas interview, 11 September 2008). For the Association of Ex-Disappeared Detainees, justice is required not only to avoid the repetition of similar crimes, but also to prevent people from taking justice in their own hands. Despite former tortures and repressors lived a life of comfortable impunity and were free to walk the streets, there have never been instances of private justice in neither Argentina nor Uruguay. Still, this risk of personal justice should be avoided through the work of the judiciary (AEED interview, 22 September 2008). Finally, trials are seen as providing moral reparations to victims and help restore their dignity. Former-President Alfonsn and Judge DAlessio, while welcoming the trials, also pointed to the appropriate implementation of constitutional principles and the difficulty of collecting information over thirty years later, being particularly concerned that innocent people could be wrongly condemned. For DAlessio, the recent trials are likely to constitute an extremely long process, underscoring how the government has an interest in maintaining the trials as propaganda, the longer they last the better. DAlessio worries that proceedings may end up converting people that were monsters into victims, stressing how they should be sped up, given that some symbolic figures like Suarez-Mason already died (DAlession interview). Former CONADEP Secretary Graciela Fernandez-Meijide, on the other hand, highlights how some of the victims relatives have had enough of trials, and would rather receive specific information on the fate of their missing loved ones. Similarly, Abuelas stresses how, in these new trials too, the victims voices are the only ones to be heard: now the perpetrators amnesia is worse than before, they do not know anything, they do not say anything and have forgotten everything [] they are cowards of the worst kind (Abuelas interview, 03 September 2007). Fernandez-Meijide draws attention to the fact that the military is unlikely to speak out, as that information could be used against them; she suggests instead the development of a plea bargain system, a special code according to which if new facts are given, like burial locations, appropriated children or archives, lesser sentences can be offered to enable progress on the truth (interview, 12 September 2008). The re-opening of trials also resulted in several witnesses being intimidated to dissuade them from providing testimony: while Luis-ngel Gerez and Juan-Evaristo Puthod were abducted and only temporarily disappeared, Jorge-Julio Lpez, key witness at the Etchecolatz trial, disappeared the day before the verdict was delivered in September 200627


and has not been seen since. This recent waves of intimidations has been linked to the police, and similar cases have not occurred in proceedings against military officers. Overall, Kirchners human rights policy triggered mixed responses within the human rights community and society. For some, the former President has been instrumental in re-opening the question of accountability; for others, he has (ab)used the question for his own political purposes. After years of fighting against governments wishing to strictly circumscribe the scope of truth and justice, several human rights groups rejoiced to have found a President finally willing to endorse their cause. Buena Memoria Asociacin Civil (Good Memory Civil Association) stresses how, unlike previous administrations the government facilitated the process of justice (interview, 30 August 2007). Likewise, the Asociacin-Madres emphasized how there has been a friendlier relationship with the Kirchners administration, when different winds were blowing, and that the Executive actually listened to our demands (interview, 30 August 2007). The Linea-Fundadora Madres pointed out how the Kirchners administration had a direct interest in the matter, given it was made of people who belong to the generation of the disappeared [] that today work for human rights, against impunity and for the social changes they desired [back then] (interview, 25 August 2007). However, there are several problems with Kirchners (ab)use of human rights. First, the Presidents policy largely focused on the past to the detriment of current human rights issues, especially problems relating to the police, the judiciary, governing by decree and the separation of powers . Second, how deep is Kirchners commitment to human rights? Late President Kirchner (and now President Cristina) were never preoccupied with this subject before. Upon being elected, Kirchner was a little known figure in political centers like Buenos Aires or Rosario, so he selected this topic in the attempt to garner support from the middle classes (Fernandez-Meijide interview, 12 September 2008). Many suggest that the Kirchners took up the human rights banner as a differentiation strategy within Peronism (interview with Argentine academic, 19 September 2008). Others also accuse the President of appropriating himself of the question of human rights. President Kirchner credited himself with the nullification of the amnesty laws that, however, resulted from the work of people that relentlessly continued to demand accountability over the decades (AEDD interview). There seems to be a pretense that policies on human rights began with Kirchner and that everything that went on before was tantamount to appeasing the military; yet important events like the CONADEP, the 1985 Trials and the Armys mea culpa occurred before (interview with Argentine academic, 5 September 2008). A strong link developed between the Kirchner Executive and some human rights groups, especially the Asociacin-Madres; this close interaction has been criticized as detrimental to28


broader human rights activism. During, the so-called campo crisis between the government and the agricultural sector between April and July 2008, the AsociacinMadres actively participated in this political issue, displaying behavior that had nothing to do with the spirit of human rights (interview with Argentine academic, 5 September 2008). This close association provoked a big deterioration in the human rights movement that moved away from a liberal and universalist discourse of human rights, to become a tendentious group that vindicates the victims [of repression] as the representatives of a political project, not as subjects with rights. In this light, recent trials have little historical value, as they feel more like historical revenge, than an effort to strengthening the rule of law: they have been politicized so much, the only thing that matters is that the government is using them politically and for petitioners to convert them into the vindication of the revolutionary fight [of the disappeared] (interview with Argentine academic, 10 September 2008). What was the attitude of the armed forces in this phase? Overall, it can be argued that, as a consequence of substantial reforms to the role and mission of the military in the 1990s, as well as to study plans and training, combined with the arrival of new generations into the corporation, the armed forces have largely taken a step back from politics. This could be witnessed during the deep economic and social crisis of December 2001, when the military did not get involved at all and left it to politicians to resolve these matters. In the past, less significant incidents had triggered military takeovers. It goes without saying that retired office continue vindicating their role in the dirty war, especially since the re-opening of judicial proceedings. Nonetheless, the armed forces have distanced themselves and on the occasion of the 30th anniversary of the coup in 2006, all the three Commanders delivered mea culpas. This reduced role for the armed forces in internal politics was a direct result of significant reforms. In the 1980s, President Alfonsn swiftly reasserted civilian management and control over the armed forces, retiring at least half of the high command and establishing a new civilian command structure, in which the highest military authority is now a civilian Minister of Defence and the President is the Commander-in-Chief. Further, the security mission of the armed forces was redefined, moving away from the National Security Doctrine and reducing their role in internal politics. In 1988, the tasks of the military were explicitly limited to national defence, but later legislation in the 1990s envisioned an internal security func

nunca más. the politics of transitional justice in argentina and uruguay 1983 - 2010. francesca...

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