| | |  Editorials | Issues | September 2009 
Justice for Latin America's Disappeared?
 Sam Ferguson - t r u t h o u t
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September 23, 2009
| | A representation of one of Latin America's Desaparacicidos outside Argentina's notorious ESMA (Naval Mechanics School), often referred to as the "Auschwitz of Argentina". (Sam Ferguson/truthout) | |
Buenos Aires, Argentina - On September 3, 2009, three aging, retired officials from Argentina's army entered a federal courthouse in Rosario, Argentina. The men - Pascual Guerrieri, Jorge Alberto Fari๑a and Juan Daniel Amelong - have been charged with the kidnapping, forced disappearance and torture of 29 people, and the murder of 17 of them during Argentina's last dictatorship.
The case in Rosario is the latest in a tidal wave of cases to reach a courthouse against the dictatorships of the Southern Cone from a generation ago. Until several years ago, less than a dozen officials were ever convicted for the atrocities committed by Latin America's military governments in the 1970s. Most of them were eventually pardoned. But within the last three years - particularly the last year - justice has sped up, including dozens of convictions and hundreds of indictments.
In the 1970s and early 1980s, eight of South America's ten largest countries were ruled by dictatorships. These governments committed some of the worst atrocities of the 20th century, and created a new type of international crime: the forced disappearance. Intelligence services, such as Chile's DINA, raided people's homes; snatched them off the streets; held them in a clandestine locations; denied them all contact with lawyers, family and the outside world and, in many cases, executed them.
The most infamous of these executions, known as the "flights of death," took place at Argentina's Naval Mechanic's School, known by its Spanish acronym as the ESMA. Drugged prisoners were loaded onto cargo planes and thrown out alive over the South Atlantic. As many as 5,000 people were exterminated at the ESMA. Tens of thousands more are amongst the ranks of what are known here as los desaparecidos, the disappeared.
For years, the perpetrators of these atrocities walked free, spared by political compromises during democratic transition. In Uruguay, a general amnesty was passed in 1984 shortly after the return of democracy and was later upheld by popular referendum in 1989. In Brazil, the military passed a self-amnesty law to shield themselves from prosecution in 1979, five years before the return of democracy. The law until now has been respected. In Chile, dictator Augusto Pinochet was even given a permanent seat in the Senate, where he remained for over a decade, after he was forced from the presidency by popular referendum in 1988. Here in Argentina, the military's top officials were prosecuted in the early 1980s, but the military forced the passage of an amnesty law and several presidential pardons after a series of rebellions in the late 1980s and 1990.
But these amnesties have been and are slowly being repealed. Argentina broke the "impunity" (as it is known to human rights activists) when a lower court judge ruled that its own amnesty laws were unconstitutional in 2001. Subsequently, the Supreme Court ratified that decision in the celebrated Simon case, and hundreds of officials have now been indicted. Dozens of cases have reached a courthouse, mostly resulting in convictions. A similar process is under way in Chile and Paraguay. On August 31, a Chilean judge ordered the arrest of 120 former officials from the DINA, Chile's intelligence service.
Brazil and Uruguay have yet to repeal their own amnesty laws, but a vigorous debate is shaping up in both countries. In Brazil, President Lula da Silva's cabinet is sharply divided over a law, which was recently introduced in congress to repeal Brazil's amnesty law. In Uruguay, a plebiscite is scheduled for October 25 for voters to decide whether the country should maintain its amnesty.
Commentators point to two likely causes for the sudden growth of cases a generation after the crimes.
First, the increasing force of international law, and pressure from international courts, has caused congresses, presidents and courts in the region to re-evaluate the legal force of amnesties and pardons passed during democratic transition.
International pressure can most clearly be traced back to the 1998 order from a Spanish judge, Baltasar Garzon (who is now also investigating US crimes perpetrated during the war on terror), to extradite Augusto Pinochet from England where he was receiving medical attention. Pinochet was never tried - he died in 2006 - but the extradition order subsequently sparked a wave of other indictments and arrest orders in Argentina and Chile in the intervening years. The day of the arrest of Pinochet, a judge in Argentina ordered the arrest of former Argentina dictator Jorge Rafael Videla.
Similarly, the Inter-American Court of Human Rights, the human rights enforcement wing of signatories to the American Convention on Human Rights, has declared that governments are prohibited under international law from passing amnesties for or pardoning crimes against humanity. Under this precedent, the Argentine Supreme Court declared the country's amnesty law unconstitutional in 2005. Similarly, the court declared the country's pardons of senior military officials unconstitutional in 2007.
Additional pressure has come from national courts across Europe, which have prosecuted several Latin officials in abstentia for the disappearance of European citizens. At the moment, an Italian court is proceeding with a case against former Argentine Naval chief Eduardo Massera, who was head of the Argentine Navy during the 1976 coup.
Even the United States has put pressure on countries in the region to prosecute military officials. In the heralded Filartiga case, a United States Federal Court in New York in 1980 heard a case of a Paraguayan national against the inspector general of the Paraguay police. None of the alleged torts in the case took place in the United States, and neither of the parties was a United States citizen, but the court ruled that the US court had jurisdiction over the case based on international law and the US alien tort statute.
The second reason why the cases have recently sprung ahead is that the region has elected liberal and left-leaning governments, all of whom have received a popularity boost by prosecuting military officials from the region's former dictatorships. In Argentina, for instance, one of Nestor Kirchner's first moves after taking office amidst economic crisis in 2003 was to pass a law through the Congress annulling the amnesty laws of the 1980's, to consolidate his electoral legitimacy.
The process is not without its critics. Rule of law adherents have criticized courts here for refusing to respect the region's amnesty laws, and argue that prosecuting former military officials is a clear violation of due process. They also argue that prosecuting these officials is not helping the cause of democracy and human rights, as the traditional problem in Latin America has been a failure to adhere to the rule of law. These commentators view the prosecutions as evidence of a long line of powerful Latin presidents and dictators who shape the law to their political needs.
Others have criticized the form the trials have taken. Graciela Fernandez Meijide, a long-time human rights activist in Argentina, and a former politician, has criticized the Argentine judiciary for not offering leniency to the defendants in these trials in exchange for cooperation, such as reducing sentences for officials who help locate missing bodies. Meijide's son, Pablo, was taken by Argentine security forces more than 30 years ago when he was 17 years old. She has not seen him since, and has no idea of the location of his final remains. Meijide, however, has received a tepid and sometimes hostile response from the broader human rights movement, which believes it is unconscionable to negotiate with military defendants.
Neither have the trials been an unqualified success. In Argentina, the process began in 2001, when a lower court judge ruled that the amnesty laws were unconstitutional. Since that time, many defendants have languished in jail without bail, awaiting trial. Though the speed of the cases is picking up - there were two trial with judgments in 2006, two more in 2007 and six in 2008 - hundreds of former military and police officials sit in jail, awaiting their day in court.
The verdict in the case in Rosario is expected in December. Only time will tell if justice has been done.
Sam Ferguson is currently a Yale Law School Robina International Human Rights fellow, and is residing in Buenos Aires, Argentina. He is writing a book about prosecuting military atrocities committed during the Dirty War. In March, he will begin a Fulbright Fellowship. |
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