Human Rights after the Dictatorship: Lessons from Argentina
Abregú, Martín
How can Latin America's human rights movement confront the abuses linked to the past along with those of today's "incomplete democracies"? In Argentina, one group is using legal activism to create...
...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...
...The suit was accepted by a federal court, , eventually led which ordered the governovernment to ment to manufacture the vaccine within a year...
...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 Per6n (1973-76), and then to the state-sponsored terrorism of the military dictatorship (1976-83...
...In the arena of social and economic rights, an important leading case is that of Mariela Viceconte, h e 6 g IE e 3i who sued the state for failing to manufacture the vaccine against Junin hemorrhagic fever, a common disease in the plains region where she lives and works...
...right to truth" As in the Lapac6 case, when all national routes are Disappeared, exhausted and satisfactory w door in the resolution to the case has not been found, CELS' inst impunity...
...How to obtain justice, given the constraints of the amnesty laws and the presidential pardons, was not immediately clear...
...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...
...It was gradually becoming clear that many current problems facing Argentine democracy called for solutions with a rights-based perspective...
...3. See Carlos Nino, Radical Evil on Trial (New Haven: Yale University Press, 1996...
...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...
...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...
...By the early 1990s, the human rights movement seemed defeated...
...7. See Manuel Garrido, "Informe sobre Argentina," in Jorge Correa Suti, ed., Situacibn ypoliticas judiciales en America Latina (Santiago: Universidad Diego Portales Escuela de Derecho, Serie Publicaciones Especiales No...
...2, N.D...
...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...
...Caught in a drawn-out arm-wrestling match with the government over these issues, the movement became increasingly demoralized...
...After reporting these abuses, he was harassed by the Federal Police, brought in on arbitrary charges, and even experienced an attempt on his life...
...recognize the Other cases have been aimed to secure the right of in cases of th citizens to obtain information opening a n on government activities...
...6. Martin AbregO, "La aplicaci6n del derecho internacional de los derechos humanos por los tribunales: Una introducci6n," in Martin Abreg6 and Christian Courtis, eds., La aplicacidn de los tratados sobre derechos humanos por los tribunes locales (Buenos Aires: Editores del Puerto-CELS, 1997...
...But as the economic crisis abated, people began to focus their attention on the quality of Argentine democracy...
...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...
...CELS took the Lapac6 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...
...and Eduardo Luis Duhalde, El estado terrorista argentino: Quince a/ios despubs, una mirada critica (Buenos Aires: EUDEBA, 1999...
...legal team presents cases before international tribunals...
...Another very significant case is that of Carmen Lapac6 of the Mothers of the Plaza de Mayo and a founding member of CELS...
...Scilingo described in alarming detail what had long been suspected: prisoners were sedated, herded onto a plane, and then thrown-still alive-into the Rio de la Plata so their bodies would never be found...
...The Lapac6 case opened a new door in the struggle against impunity, and numerous other cases were opened in several provincial courts throughout the country...
...In the mid-1990s, CELS launched the Program for the Application of International Law to Human Rights in Local Courts...
...In addition, we reasoned that the "leading cases" we address must reflect the principal human rights problems and priorities in our society...
...Legal work was an excellent tool in this regard...
...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...
...Human rights work in Argentina today is very much an outgrowth of efforts begun more than 20 years ago...
...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...
...But over time, human rights groups began to devise new strategies to combat impunity...
...Though the charges against Ojeda have been dropped, the case has not been fully resolved...
...This gave renewed impetus to the provincial court cases, which continued their investigations despite the Supreme Court ruling...
...5. See Nino, Radical Evil...
...The latter finally validated the lower court's decision that the police must provide the information...
...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...
...Some groups began to work on current human rights issues linked to the very nature of our incomplete democracy...
...CELS accused the Argentine state of failing to comply with the UN International Covenant on Economic, Social and Culrural Kignts, wnicn mant by one of the dates states to seek solutions to these types of Plaza de Mayo, illnesses...
...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...
...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 Josd Luis Cabezas...
...it was opposing amnesty laws granted to human rights violators by a constitutional government...
...This brief history of the word "impunity" is a metaphor for the Argentine human rights movement...
...After determining that Follini had no police record, he was let go...
...Acufla and Smulovitz, "Militares...
...CitVOL XXXIV, No 1 JULY/AUGUST 2000 17 VoL XXXIV, No 1 JuLYv/AUGUST 2000 17 REPORT ON HUMAN RIGHTS ing 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...
...But our work has had to change a great deal to adapt to new events and circumstances...
...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...
...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...
...the infamous Full Stop and Due Obedience laws-effectively granting impunity to human rights violators...
...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...
...that impunity is rampant in our society, and that this is a not succeeded serious political and social problem that undermines our obtain fragile democracy...
...Scilingo's confession revived the issue of impunity and reinvigorated the efforts of human rights groups to see justice done...
...No longer was it resisting a dictatorship...
...By 1996 human rights groups had brought several cases before the courts, though the legal process moved at a snail's pace until 1998...
...One such case involved a CELS struggle ag researcher, whose request for information from the Federal Police regarding the number of people arrested during a one-year period was never answered...
...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...
...When he returned to the event, ne was detained again by the same police, again cit- A case brougl ing their right to check his "identity...
...2 Unlike in 12NACIA REPORT ON THE AMERICAS Martin Abreg6 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...
...Perhaps the most successful strategy was the opening of trials investigating the kidnapping of some 500 children of the disappeared, a crime not Vol )(XXIV, No 1 JULYIAUGUST 2000 13 VOL XXXIV, No 1 JuLYv/AUGUST 2000 13REPORT ON HUMAN RIGHTS covered under the amnesty laws or the official pardons...
...and Hugo Fr0hling, "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...
...al., eds., Juicios, castigos y memorias (Buenos Aires: Editorial Nueva Visi6n, 1995...
...In 1987, as then-President Radil Alfonsin was proposing a series of laws to abort trials of military officials accused of committing gross human rights abuses during the military dictatorship (19761983), the Argentine human rights movement organized the first "March Against Impunity...
...Once that phrase dealt only with the crimes of the dictatorship, or with civil or political rights...
...Misconduct by security forces is also a serious issue, including police killings, abuse of authority and rampant corruption.8 C ELS has handled a series of leading cases dealing with police corruption and misconduct...
...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...
...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...
...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...
...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...
...4. Juan M6ndez, Guillermo O'Donnell and Paulo Sbrgio Pinheiro, eds., The (Un)Rule of Law and the Underprivileged in Latin America (South Bend: University of Notre Dame Press, 1999...
...Older demands for political democracy have also been reinterpreted as legal demands for human rights...
...he 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...
...Carlos Acuia and Catalina Smulovitz, "Militares en la transici6n argentina: Del gobierno a la subordinacibn constitucional," in Carlos Acuria et...
...The case of Martin Follini highlighted the arbitrary nature of police conduct...
...But in Argentina, a not-guilty verdict may provoke denunciations that the justice system is an "accomplice of the criminals...
...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 Mds...
...Among the most important are failures by government agencies to assure access to fundamental economic and social rights like education and healthcare...
...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...
...CELS won the Mothers of thi case: The police officers were convicted for the illegal pri- Carmen Lapac vation of liberty, establishing the Menem an important precedent in the area of police misconduct...
...Marcelo Sancinetti, Derechos humanos en la Argentina post-dictatorial (Buenos Aires: Lerner Editores, 1988...
...4 Then, in 1995, former navy captain Francisco Scilingo confessed to participating in "death flights" during the military dictatorship...
...But this required devising new strategies that went beyond opposition to the dictatorship and the struggle to bring human rights violators to justice...
...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...
...This case was appealed all the way to the Supreme Court, which ruled that such issues should not be tried in criminal courts...
...In 1995, Lapac6 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 InterAmerican Court on Human Rights...
...8. See La inseguridad policial: Violencia de las fuerzas de seguridad en la Argentina (Buenos Aires: EUDEBA-Human Rights Watch-CELS, 1998...
...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...
...2. Derechos humanos en la Argentina: lnforme anual 2000 (Buenos Aires: EUDEBA-CELS, 2000...
...These new circumstances confronted the human rights movement with difficult challenges...
...Few Argentines understood what "impunity" meant back then, but now it is one of the most frequently used words in our vocabulary...
...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...
...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...
...Ed 0 Z NACIA REPORT ON THE AMERICAS 12REPORT ON HUMAN RIGHTS 1987, when holding state officials accountable for The human ri their crimes seemed an impossibility, today there is helped establi widespread understanding the idea of im...
...And despite a history of frequent military coups, Argentina also has a very strong legal tradition...
...The movement helped establish in Argentine society the idea of impunity, or lack of accountability, yet it has not managed to obtain justice...
...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...
...and Jaime Malamud-Goti, Game Without End (Tulsa: Oklahoma U. Press, 1996...
...Today more than a dozen previously pardoned military officers (including two former junta members) are again in prison...
...One major difference with the United States, for example, is that Latin American judicial institutions have been greatly discredited...
...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...
...Goti, Game Without End...
...Now, economic and social rights are also on the table...
...via a strategy of legal activism has contributed to a broadening of the concept of "human rights...
...Translated from the Spanish by NACLA...
...Discrimination based on gender, ethnicity, religion, sexuality or disability is also a major problem...
...One such case is that of Jos6 Luis Ojeda, who was tortured while in police custody...
...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...
...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...
...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...
...Human Rights After the Dictatorship: Lessons from Argentina 1. See Nunca Mhs: Informe de la Comisi6n Nacional sobre la Desaparici6n de Personas (Buenos Aires: EUDEBA, 1999, Fifth Edition...
...3 Indeed, in response to growing military unrest, the first constitutional government of Radil Alfonsfn (1984-1989) passed a series of laws-ghts movement sh in Argentina unity, yet it has I in its efforts to justice...
...This jurisprudence-coupled with the threat of international sanctions if such treaties are not respectedmakes international law a very useful tool for advancing human rights protection within Argentina...
...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...
...In Argentina, one group is using legal activism to create accountability on both counts...
...Sancinetti, Derechos humanos...
...Another case we brought before the InterAmerican 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 1985 trials against the former junta members further consolidated Argentina's legal culture, turning the courts into magnets for people demanding their rights...
...Our goal was to develop a new, broader agenda that would supplement traditional human rights activism with legal work in the Argentine courts...
...CELS presented a writ of relief, which was accepted by a lower court, but the state appealed the decision to the Supreme Court...
...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...
Vol. 34 • July 2000 • No. 1
