CHALLENGING STATE HUMAN RIGHTS PR ACTICES FROM THE OUTSIDE: ARGENTINAâ€™S TRANSNATIONAL ADVOCACY NETWORK DURING DICTATORSHIP, TRANSITION, AND DEMOCRATIC RULE By KIRSTEN NOELLE ANDERSON A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS UNIVERSITY OF FLORIDA 2005
Copyright 2005 by Kirsten Anderson
This document is dedicated to my mother , Hayxa Anderson, for always supporting me and sacrificing so much so that I may pursue my dreams.
ACKNOWLEDGMENTS I would like to thank my thesis committee chair, Dr. Phillip Williams, for his invaluable support, patience, and direction. Additionally, I would like to thank my committee members, Dr. Phillip McCoy and Sherrie Russell-Brown, for their enthusiasm and insightful feedback. For his extensive research help and suggestions, I would like to thank Richard Phillips, Director of the Latin American Collection at the University of Florida. I also would like to acknowledge the Center for Latin American Studies at the University of Florida for funding my graduate studies, and especially Amanda Wolfe. I also want to give a special thanks to Dr. Alejandra Osorio, without whom I would find myself on a very different path. Finally, I would like to thank my family, as well as my â€œfunctionalâ€ family, wonderful people who have been endlessly supportive and encouraging. iv
v TABLE OF CONTENTS page ACKNOWLEDGMENTS.................................................................................................iv LIST OF FIGURES..........................................................................................................vii ABSTRACT.....................................................................................................................vi ii CHAPTER 1 INTRODUCTION........................................................................................................1 The Problem..................................................................................................................4 Definitions.................................................................................................................... 6 Literature Review.........................................................................................................6 Research Design.........................................................................................................14 2 RESPONDING TO THE DICTATORSHIP: ARGENTINAâ€™S TRANSNATIONAL ADVOCACY NETWORK......................................................17 The Human Rights Movement in Argentina: 1976-1983...........................................18 Professional Campaigns: Reframi ng the Issue of Disappearances.............................22 Architects and Psychiatrists: The Mario Tempone and Irene Orlando Campaign.........................................................................................................24 The Disappeared Doctors and Scientists.............................................................30 Repression Against Lawyers...............................................................................33 Targeting Foreign Governments: Enlisting a More Powerful Ally............................37 The Message â€œEchoesâ€ Back to Argentina.................................................................44 3 THE FIGHT AGAINST IMPUNITY: TRANSITIONAL JUSTICE AND BEYOND....................................................................................................................49 Civilian Rule and Transitional Justice........................................................................53 From Justice to Impunity............................................................................................57 Fighting Against Impunity: New Le gal Strategies for Justice....................................61 U.S. Civil Cases...................................................................................................63 European Criminal Cases....................................................................................66 Conclusions about Transnational Litigation...............................................................71
4 THE BOOMERANG EFFECT OF FOREIGN HUMAN RIGHTS TRIALS: MEASURING THE JUSTICE CASCADE................................................................74 Internalization of Human Rights Norms: The Role of the Transnational Justice Network..................................................................................................................75 Using Accountability Politics: Transnational Interactions and Interpretations of Human Rights Norms..................................................................................77 The Process of Internalization and Obedience of Human Rights Norms............87 The Boomerang Effect: Argentinaâ€™s Justice Cascade................................................89 5 CONCLUSIONS......................................................................................................100 APPENDIX A LETTERS FROM THE INTERNATIONAL CAMPAIGN TO FREE MARIO TEMPONE AND IRENE ORLANDO....................................................................107 B CADHU BROCHURE COVER AND LETTER WRITING CAMPAIGN.............121 C AMNESTY MEASURES.........................................................................................123 D ARGENTINAâ€™S TREATY OBLIGATIONS WITH CONSTITUTIONAL STATUS...................................................................................................................130 LIST OF REFERENCES.................................................................................................132 BIOGRAPHICAL SKETCH...........................................................................................141 vi
LIST OF FIGURES Figure page 1 The Boomerang Effect in Argentina during the Military Dictatorship (1976-1983.).............................................................................................................47 2 The Boomerang Effect in Argentina: The Campaign Against Impunity.................96 vii
Abstract of Thesis Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Master of Arts CHALLENGING STATE HUMAN RIGHTS PRACTICES FROM THE OUTSIDE: ARGENTINAâ€™S TRANSNATIONAL ADVOCACY NETWORK DURING DICTATORSHIP, TRANSITION, AND DEMOCRATIC RULE By Kirsten Noelle Anderson May 2005 Chair: Phillip Williams Major Department: Latin American Studies This thesis explores the development of a transnational advocacy network that formed in Argentina under the military dictatorship that was in power between 1976-1983. It examines how domestic human rights groups, when faced with gross human rights violations by their own state, used international contacts to pressure the government from outside the domestic sphere. Eventually, this pressure from international organizations, other states, and intergovernmental organizations forced the Argentine government to curtail its practice of human rights violations. By the transition to democracy in 1983, it is estimated that 30,000 people had â€œdisappearedâ€ by the hands of the dictatorship. Domestic human rights groups worked with prosecuting attorneys to provide information about the human rights abuses, helping Argentina achieve the largest program of trials for human rights abuses committed by a former regime. Due to civil-military tensions and the protracted nature of numerous human rights trials, Argentina passed two amnesty laws, and the rest of the military viii
officials who did not benefit from these laws were pardoned. These measures created a blanket impunity and an impediment to domestic judicial recourse for victims of these atrocities. Faced with these amnesty measures, a transnational justice network, working within the greater context of the transnational advocacy network, used transnational litigation as a tool to pressure the Argentine government to establish accountability for perpetrators of human rights abuses. As a result, the network was able to pressure the government from outside the domestic sphere, and in 2003, the Argentine Congress repealed the amnesty laws. This move by the Argentine Congress was unprecedented in Latin America where amnesty laws have become a part of the legal landscape. It raises serious questions about the viability of revisiting this issue after the transition to democracy, but is taking place within a greater global trend of accountability, that is grounded in international human rights law. ix
CHAPTER 1 INTRODUCTION During the 1960s and 70s, amidst a climate of insurgency inspired by the Cuban revolution, military leaders in much of Latin America, allied with civilian groups that supported the suppression of these leftist movements, decided to replace civilian governments with military regimes (Loveman 1999: 185). In Latin America, only Colombia, Venezuela and Costa Rica survived the wave of authoritarianism that swept the region after 1964 (Oâ€™Donnell 1986: 14). These authoritarian regimes were extraordinarily repressive and many countries suffered economic crises during the 1980s as they were transitioning back to civilian rule (Oâ€™Donnell 1986: 17). The reactionary campaign of counterinsurgency that many of these governments embarked upon resulted in massive human rights violations that included the abduction, torture and murder of thousands of people (Loveman 1999: 227). The transitions back to democracy from 1978 to 1994 in Latin America brought demands for justice and the punishment of armed forces personnel accused of human rights violations (1999: 227). In Latin America and in other regimes, transitional justice posed a difficult problem as these nascent democracies pursued varying approaches in their quest for justice. These strategies can include domestic criminal prosecutions, international criminal prosecutions through the establishment of an ad hoc tribunal, truth commissions that investigate and document abuses but do not punish the perpetrators, civil remedies, or the passage of amnesty laws that preclude prosecution (Oko 2003: 93). However, in many cases the military officials responsible for these atrocities enjoyed 1
2 either de facto impunity or de jure impunity through amnesty laws that precluded prosecution or pardons (Orentlicher 1991: 2539). Impunity is defined by Blackâ€™s Law Dictionary as â€œan exemption or protection from punishmentâ€ (Garner 2001: 336). Amnesty International further expands this literal definition and notes, â€œMore broadly, the term conveys a sense of wrongdoers escaping justice or any serious form of accountability for their deedsâ€ (AI 1994: 158). Some scholars distinguish between pardons and amnesty laws, claiming that a pardon is less objectionable because it leaves a guilty verdict intact and only modifies the punishment. By contrast, an amnesty law precludes any possibility of prosecution (Orentlicher 1991: 2604). However, pardons as well as amnesty laws can bring about a climate of impunity, especially when issued in response to a military threat, because they weaken civil societyâ€™s ability to control over the military through prosecutions (1991: 2606). Ultimately, the methods each country employs are grounded within a particular political and social context and countries that choose not to prosecute, for example, may do so out of fear of tipping the balance of civil-military relations and endangering the newly established democracy. Argentina, more than any other country in Latin America, attempted to pursue the most aggressive program of trials for transgressions committed during the dictatorship. However, political pressures, civil-military tensions, and the possibility of protracted trials numbering over 1,000 with no specific end point, led to concessions by the government in the form of amnesty laws and subsequent pardons. In Latin America, the prosecution of officials has been the exception rather than the rule in spite of tremendous international support to bring military officials involved in systematic human rights abuses to justice. Even though legal scholars have analyzed a
3 countryâ€™s duty to prosecute or provide an â€œeffective remedyâ€ for human rights atrocities committed under prior regimes, political instability and the threat of a coup or lack of political support often prevent countries from bringing perpetrators to justice. While international law may suggest that it is not entirely up to each individual country facing the transgressions of past regime to decide how to reconcile with the past and bring justice to the victims, the political and social realities of transitional justice are far more complex. The discussions of scholars, jurists and professors about the duties of transitional societies to prosecute massive human rights violations seem far removed from the actual realities facing such regimes. The most the international community could hope for, it seemed, was that if it could not prevent such crimes, at least it would not condone them, hoping that message would eventually make a difference (Orentlicher 1991: 2615). While Argentina, along with other countries in Latin America, may be said to have officially made the transition to democracy, the human rights issue is far from closed in spite of the climate of impunity that has surrounded these countries since the end of authoritarian rule. In Argentina, it has been twenty years since the military dictatorship handed power over to a civilian government, yet in August of 2003, the Argentine Congress passed Law N. 25.779 (see Appendix C), overturning the two amnesty laws passed during the transitional period. In a region where amnesty measures existed in some form in eleven countries (including Argentina, Brazil, Chile, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Peru, Suriname, and Uruguay), this measure by the Argentine Congress was unprecedented (Boed 2000: 298). Human rights groups estimate that over 1,000 former
4 and current military officers could face trial, and more than 40 have been detained for extradition to Spain on charges of killing Spanish citizens (Rohter 2003a). While the ultimate decision of the issue of impunity will lie in the hands of the Supreme Court, this marks an extraordinary development in the fight to prosecute military officials for human rights abuses. The Problem By using Argentina as a case study, I propose to study how a transnational advocacy network worked to pressure the government to bring military officials responsible for human rights abuses to justice, culminating in the nullification of Argentinaâ€™s amnesty laws twenty years after that country transitioned to democratic rule. This topic has important ramifications within the region and in other areas of the world where human rights abusers of a former regime enjoy impunity and can illuminate how international human rights law can influence a stateâ€™s domestic policies. It also raises several questions about the feasibility of reopening the human rights issue so long after the democratic transition and whether the Argentine case could be situated within a broader context of accountability sweeping the region. This thesis relies on the premise that an analysis of domestic political processes is not sufficient to explain why Argentina would revisit this issue twenty years after the transition to democracy. Specifically, by using Keck and Sikkinkâ€™s notion of the â€œboomerang pattern,â€ I contend that a transnational advocacy network employed a variety of tactics to pressure the government from outside the domestic sphere to lobby for a change in human rights policy (Keck & Sikkink 1998: 13). The boomerang pattern functions when a government violates or fails to provide certain rights, and individuals have no ability for judicial or political recourse domestically (Keck & Sikkink 1998: 12).
5 Domestic NGOs use international contacts to pressure the government from the outside, employing a variety of methods depending on the context, to eventually â€œechoâ€ these demands back to the country to change the stateâ€™s policies or behavior (Keck & Sikkink 1998: 12-13). In the case of Argentina, there were still domestic challenges to the impunity enjoyed by human rights officials, such as cases filed challenging the lawâ€™s constitutionality and marches by the Madres de Plaza del Mayo. However, absent repeal of the amnesty laws by the Argentine Congress, political actors within Argentina had limited judicial recourse to remedy the perceived violation. Within this context, I propose to study how a transnational justice network used transnational litigation to enable victims to seek redress abroad (see Lutz & Sikkink 2001). Similar to other transnational advocacy networks, the transnational justice network functions by allowing victims access to justice outside their state when they are denied recourse due to domestic barriers such as amnesty laws or pardons (2001: 4). This network placed pressure upon the Argentine government to internalize international human rights norms and remove barriers to prosecution domestically. The following research questions were investigated in this thesis: How did a transnational advocacy network effectively pressure the military dictatorship in Argentina to curtail its human rights violations? How does a transnational justice network operate within a greater human rights advocacy network to place international pressure upon a government to provide judicial recourse to victims of human rights violations? How is the work of domestic NGOs, and political agency of domestic actors connected to these transnational processes?
6 Definitions A transnational advocacy network â€œincludes those relevant actors working internationally on an issue, who are bound together by shared values, a common discourse, and dense exchanges of information and servicesâ€ (Keck & Sikkink 1998: 2) A transnational justice network is â€œa network of professionals engaged in a common policy enterprise with recognized expertise and competence in the particular domain and an authoritative claim to policy-relevant knowledge in that issue or domainâ€ (Lutz & Sikkink 2001: 3). A norms cascade is a collection of norm-affirming events such as verbal or written statements asserting the norm. It is not the same thing as behavioral change. (2001: 4). A justice cascade is a type of human rights norms cascade. The important norm-affirming events in this cascade involve things such as decisions of foreign courts about the particular violation of human rights norm (2001: 4). Literature Review The development of international human rights law marked a distinctive break with traditional norms of state sovereignty. Typically, international law only addressed violations of individual rights by states in two areas: the law of state responsibility for injury to aliens, and humanitarian law, or the laws and customs of war. The advent of the two World Wars brought to light the fact that international law was ill-equipped to deal with state-sponsored abuses of human rights. From the lessons of World War II came the advent of criminal accountability for war crimes and the development of human rights law, the body of law that places limits on a governmentâ€™s treatment of its own citizens (Ratner & Abrams 2001: 4).
7 Unlike domestic law, enacted by a legislature, the formation of international law is both complex and uneven. An underlying theme of international law is that countries are not bound by something they did not consent to. The Vienna Convention on the Law of Treaties (â€œVienna Conventionâ€), an important international agreement, highlights the importance of state consent and indicates that this principle is universally recognized (see Vienna Convention 1969: preface & arts. 11-15). To determine a countryâ€™s obligations, courts and scholars look to the sources of international law. The Statute of the International Court of Justice, a treaty appended to the U.N. Charter, lists the sources of international law as international conventions (treaties), international custom, the general principles of law recognized by civilized nations, and as a subsidiary means, judicial decisions and the work of scholars (see Statute of the International Court of Justice 1945: art. 38). Relevant treaties that can pose obligations on countries to investigate and prosecute violations of the rights enumerated therein include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (â€œConvention Against Tortureâ€), the International Covenant on Civil and Political Rights (â€œICCPRâ€) and the American Convention on Human Rights (â€œAmerican Conventionâ€). Judicial decisions that have analyzed the viability of Argentinaâ€™s amnesty laws have drawn upon these treaty obligations to determine that countryâ€™s duties arising under international law. Treaties, however, are not the only source of international law. Another important body of law to consider is the development of customary international law. This is defined by the Statute of the International Court of Justice as â€œinternational custom, as evidence of general practice accepted by lawâ€ (Statute of the International Court of
8 Justice 1945: art. 38(1)(b)). Generally, the elements of customary international law fall into two categories: the objective practice of states and opinio juris, or the subjective evidence of a stateâ€™s motivation (Schabacker 1999: 37). While customary international law may create a duty to prosecute human rights violators in general, scholars disagree over whether these duties apply to transitional regimes. State practice regarding the prosecution of human rights abuses is not uniform. The reverse is more likely the caseâ€”many governments have employed a variety of truth commissions, amnesty laws and other methods of dealing with past abuses, but there is neither a consistent nor uniform practice to rely on (1999: 38). However, the subjective element of customary international law reveals a different situation. Human rights instruments such as the Convention Against Torture and the Genocide Convention both have provisions that impose a duty to prosecute, and these are non-derogable even in states of emergencies. If, as some scholars argue, the development of customary human rights law relies more upon opinio juris, or if practice can be considered not just what countries do but by their rhetoric, then there could be a broader consensus that would support a duty to prosecute (1999: 39-40). The human rights abuses suffered by thousands of people in Argentina at the hands of the military dictatorship are not merely prohibited by human rights conventions or customary international law. Certain peremptory norms of general international law, or jus cogens, are the highest norms of customary international law â€œaccepted and recognized by the international community of States as a whole and as a norm from which no derogation is permittedâ€ (Vienna Convention 1959: art. 53). The vast majority of human rights norms do not rise to the level of jus cogens; however, they usually
9 include the prohibition against genocide, apartheid, slavery and torture. States are bound by jus cogens norms even if they did not consent to be bound (Schabacker 1999: 42). Fundamental rights such as the right to life, and the prohibition of torture and inhuman and degrading treatment are also considered non-derogable, even in a state of emergency, and afforded the highest degree of protection under international law (Henrard 1999: 615). While the area of human rights law is still developing, the arbitrary detention, torture and disappearance of thousands of people at the hands of Argentinaâ€™s military regime fit into this subset of human rights norms clearly prohibited under international law. The question, then posed by jurists and scholars, is whether there is an affirmative duty to prosecute under international law. Diane Orentlicher, General Counsel for the International League for Human Rights, wrote an influential article published in the Yale Law Journal titled â€œSettling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime.â€ In this article, she argues that in order to establish and maintain the rule of law, the prosecution of human rights atrocities is required. Moreover, she argues that treaties and customary international law already impose certain affirmative obligations on countries to investigate and prosecute abuses such as torture and forced disappearances. This represented a change in the implementation of human rights law, no longer allowing countries to decide for themselves how to fulfill their obligations (Orentlicher 1991: 2541). Orentlicher further examines this duty to prosecute within the delicate political context of transitional justice. While she admits that international law does not require a country to prosecute if this would threaten its national stability, she argues that a state
10 may not derogate from its duties just to promote reconciliation or to appease the military forces (1991: 2595). However, she notes the burden that this could place on nascent democracies and writes, â€œFor a new government precariously perched atop a restless and long-oppressed polity, with torturers still controlling the guns, the threat of a coup may seem all too real. International law seems not so much remote as beside the pointâ€ (1991: 2615). Theories of compliance with international law are vast and range from the realist paradigm that suggests nations never actually obey international law but have to be coerced, to liberal theorists that posit nations obey from a moral obligation that arises from ideas of fairness, democracy and legitimacy (Koh 1998: 634). These traditional theories are primarily focused on the interactions between states and overlook transnational processes that internalize international norms into domestic norms and law (1998: 636). Harold Hongju Koh, a Professor and Director of the Center for International Human Rights Law at Yale University, writes about this transnational process in an attempt to explain how internalization produces greater obedience to international law. He describes this process in four phases: interaction, interpretation, internalization, and obedience. One or more transnational actors begin a series of interactions in a forum that interprets or declares the law (such as an international court). Once the forum articulates the particular legal norm, the result is not necessarily coercion to comply with the norm, but pressure to internalize the norm within the domestic legal, political or social arena. No longer an international obligation, it becomes an internal one that the country obeys (1998: 644).
11 Among the â€œagents of internalizationâ€ described by Koh, are nongovernmental organizations, governmental actors at home and abroad, transnational issue networks, and legal fora, such as commissions responsible for treaty interpretation and enforcement and international courts (1998:648-649). This process of internalization articulated by Koh overlaps with the goals of transnational advocacy networks studied in Margaret Keck and Kathryn Sikkinkâ€™s book Activists Beyond Borders. A transnational advocacy network â€œincludes those relevant actors working internationally on an issue, who are bound together by shared values, a common discourse, and dense exchanges of information and servicesâ€ (Keck & Sikkink 1998: 2). The actors include government actors, NGOs, and IGOs. These networks operate in areas such as human rights, womenâ€™s rights, and the environment. Their fundamental argument is that international human rights pressures can lead to changes in human rights practices, and that these networks are most visible when â€œchannels of participationâ€ in the domestic sphere are blocked and the only way to effect change is through the international arena. The desired outcome is the boomerang pattern, through which domestic NGOs use international contacts to influence the stateâ€™s policy from outside (1998: 12). Keck & Sikkink identify a list of tactics employed by these networks to leverage the government. These tactics include: (1) information politics, providing facts and testimony to persuade people to act; (2) symbolic politics, a tactic through which networks use symbolic events such as protests, actions or stories, to reframe issues and attract public awareness; (3) leverage politics, using material or moral leverage from more powerful actors such as international organizations or foreign governments to pressure the state to change its behavior; and (4) accountability politics,
12 the use of a governmentsâ€™ stated position (e.g. by ratifying a human rights treaty) to expose their lack of compliance with public commitments (1998: 16-25). Keck & Sikkink studied the transnational advocacy network in place in Argentina during the dictatorship and highlighted the connection between Argentinaâ€™s domestic NGOs and international actors that helped protect, support and open spaces for their protest (1998: 107). They tracked the coordination between the domestic and international arena to show how the advocacy network helped pressure the Argentine government to eventually end the practice of disappearance and finally restore democracy in 1983 (1998: 109). However, their analysis was more focused on general trends and major events that occurred within the human rights movement, rather than providing evidence of specific connections between the domestic NGOs and the transnational actors. In 2001, Kathryn Sikkink elaborated upon this work and collaborated with Ellen Lutz, publishing an article titled, â€œThe Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America.â€ In that article, they documented a specific type of transnational advocacy network that they called a transnational justice network. This is defined as â€œa network of professionals engaged in a common policy enterprise with recognized expertise and competence in the particular domain and an authoritative claim to policy-relevant knowledge in that issue or domainâ€ (Lutz & Sikkink 2001: 3). Specifically, they studied how groups of lawyers systematically used transnational litigation, both civil and criminal trials in foreign countries, to pursue judicial recourse for victims of human rights abuses that could not seek justice in their own countries.
13 Lutz & Sikkink analyzed how this type of litigation contributed to a â€œnorms cascade,â€ or a collection of norm-affirming events. This can occur through judicial decisions or reports issued by inter-governmental organizations that indicate a particular norm shift. Specifically, the authors focus on a â€œjustice cascadeâ€ that reaffirmed the international norms through decisions from human rights litigation that articulated affirmative duties to bring human rights abusers to justice under international law (2001: 4). To examine this justice cascade, they analyzed litigation in the United States, Europe, in international courts, and in regional human rights bodies. They determined that in some circumstances, the boomerang effect was not always observed, since the norms affirmed through this type of litigation were never internalized (2001: 5). Lutz & Sikkink not only provide a detailed examination of the transnational justice network operating within Latin America, they provide a list of indicators they suggest are useful in determining how this type of litigation and norms cascade influence state behavior. These factors include objective elements such as: the number of trials held in countries, legislative changes, and judicial decisions by domestic courts and international ones such as the Inter-American Court of Human Rights that would undermine the legitimacy of amnesties. Subjective indicators such as the level of redress received by the actual victims through criminal or civil litigation, the career paths of those individuals accused of atrocities, and policy changes in countries that had not experienced foreign trials of one of their own citizens for human rights abuses. They suggest that by studying these indicators, researchers will be able to examine the impact of this type of transnational litigation on domestic policies (2001: 32).
14 These are the main theories that frame my study of the way in which a transnational advocacy network working in Argentina challenged traditional notions of sovereignty and used various types of leverage, including transnational litigation, to pressure the Argentine government to repeal its amnesty laws. I propose using Argentinaâ€™s transnational advocacy network, both during and after the dictatorship, as a test case for Keck & Sikkinkâ€™s theory of the â€œboomerang effect.â€ I plan to demonstrate, through the use of evidence from specific human rights campaigns, the way in which this â€œboomerang effectâ€ changed human rights practices in Argentina both during the dictatorship and then 20 years later when it was able to pressure the government to overturn the amnesty laws. Research Design I propose to conduct a case study of the transnational advocacy network in Argentina that worked domestically and internationally to provide a domestic remedy for victims of human rights abuses during the military dictatorship. I plan to study the ways this network used information, symbolic, leverage and accountability politics as interlocking strategies to pressure the Argentine government (see Keck & Sikkink 1998: 16). In Chapter 2, I will explore the emergence of the human right rights network in Argentina that worked both domestically and internationally to challenge the military governmentâ€™s arbitrary detention, disappearance, and extrajudicial killing of thousands of people between 1976 and 1983. Building on Keck and Sikkinkâ€™s work studying the human rights movement in Argentina, I will analyze more evidence of the transnational nature of this advocacy network and the various strategies employed by domestic NGOs to pressure the Argentine government in both domestic and international arenas.
15 Chapter 3 begins by analyzing the human rights networkâ€™s campaign after the transition to democracy to bring the military officials complicit in the â€œDirty Warâ€ to justice. This campaign was ultimately blocked by the passage of two amnesty laws under the Alfonsn administration and the pardons subsequently issued by Menem. These amnesty laws sparked domestic and international protest, and many legal scholars have debated whether a country may preclude justice in this manner by passing an amnesty law. Faced with this â€œblockageâ€ to justice domestically, the transnational advocacy network employed new strategies to seek justice even with the amnesty laws in place. In Chapter 3, I further analyze the ways the transnational advocacy network used a combination of information, symbolic, leverage and accountability politics to use international pressure to influence Argentinaâ€™s domestic policy. Since a legal solution was not permissible in Argentina, this network relied on a multitude of strategies such as foreign human rights trials that included civil litigation in the United States, criminal litigation in countries such as Spain under a theory of universal jurisdiction, and criminal trials in absentia for crimes against European citizens. In Chapter 4, I will demonstrate how Argentina internalized human rights norms as the message of the advocacy network was â€œechoedâ€ back into the domestic arena. Furthermore, I will build upon the work in Lutz & Sikkinkâ€™s article, â€œThe Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America,â€ using their suggested indicators to measure the penetration of the â€œjustice cascade.â€ Ultimately, I believe this analysis of the â€œjustice cascadeâ€ will demonstrate that in Argentina, unlike in other countries, the human rights network has succeeded in pressuring the government to remove domestic barriers to justice. Therefore, twenty
16 years after the transition to democracy, the transnational advocacy network has succeeded in the desired â€œboomerang effectâ€ described by Keck & Sikkink when the Argentine Congress voted to repeal the amnesty laws and remove domestic legal barriers to prosecution of accused human rights abusers. Finally, in Chapter 5, I will address the potential backlash caused by Argentinaâ€™s repeal of its amnesty laws. There are potential problems domestically, in terms of civil-military relations, and the possibility of protracted human rights trials in a country that is facing other serious problems. Additionally, if an amnesty law can be repealed 20 years after a military dictatorship hands over power to a civilian government, future de facto regimes may be less likely to hand power over peacefully with the knowledge they be subject to prosecution. Also, there are numerous countries in Latin America and across the world that have similar provisions in place, who may attempt to follow in Argentinaâ€™s footsteps with uncertain consequences. Finally, I will examine the significance of this process within a country that has suffered a recent economic crisis, and where arguably the rule of law and judicial reform are desperately lacking in Argentinaâ€™s current formula of democracy. I will conclude that this case can serve as an example of the way in which international law can be used to change a stateâ€™s practice, and that it is taking place within a greater global trend that is calling for accountability and judicial recourse for victims of human rights abuses under former and current regimes.
17 CHAPTER 2 RESPONDING TO THE DICTATORSHIP: ARGENTINAâ€™S TRANSNATIONAL ADVOCACY NETWORK By 1976, Argentinaâ€™s government was bare ly functioning and the country was in the midst of economic chaos (Cavarozzi 1986: 42). The military viewed the leftist guerrilla challenge and the economic crisis as evidence of a â€œsick societyâ€ (1986: 43). As guardians of the countryâ€™s â€œâ€˜national destiny,â€™â€ the military, with support from the liberals, declared an internal war against subversion and took over the government in the military coup of 1976, replacing it with a milita ry junta that divided control of the country (1986: 44). However, the militaryâ€™s plan for reform eventually collapsed in 1983 amidst economic failure, gross corruption, massi ve human rights abuses that included the torture and â€œdisappearanceâ€ of up to tens of thousands of civilians, and defeat by the British in the Falklands/Malvinas war (Pion-Berlin & Arcenaux 1998: 644). The military government maintained the stat e of siege declared by executive decree on November 6, 1974. Under the Argentine C onstitution, the executive branch of the government is authorized to suspend constitu tional guarantees during times of internal unrest, but these powers are limited and the President was not supposed to assume a judicial role (AI 1976: 11). This state of si ege led to a â€œâ€˜permanent state of emergencyâ€™â€ characterized by a loss of civil liberties, and tremendous government repression including the arbitrary arrest, torture, and detention of suspected s ubversives (AI 1977a: 116). The main method of state terror employe d by the Argentine government during the dictatorship was the â€œdisappearanceâ€ of peopl e, a human rights viola tion that includes the
18 kidnapping of unarmed citizens, de tention, torture, and in most cases extrajudicial killing (AI 1994: 84-85). Amnesty International de termines that a â€œdisappearanceâ€ has taken place when there are reasonable grounds to believe that person is in custody of authorities or agents of the state, the person is depriv ed of liberty by being held prisoner, and the authorities deny that the person is in custody (1994: 85). â€œDisappear anceâ€ is often a way to cover up extrajudicial executions, which ar e deliberate and unlawfu l killings that are acquiesced to or ordered by the government ( 1994: 86). It is estimated that tens of thousands of persons were directly affected by Argentinaâ€™s â€œDirty Warâ€ against its own citizens through either â€œdisappe arances,â€ or varying combina tions of illegal detention, torture, murder, rape and kidnapping (Brysk 1994: 38). The Human Rights Moveme nt in Argentina: 1976-1983 Amidst this backdrop, a human rights moveme nt in Argentina worked to document these disappearances, protest the military governmentâ€™s human rights practices, and utilize international contacts to pressure the government. Some of the human rights groups emerged in response to the repression by the military government, and others had been in place years before. Generally, these human rights groups ar e divided into three categories: those founded by people directly affected by the repression, religious organizations, and activists who were fighting for civil liberties in general (Jelin 1994: 41). The major groups founded by those affect ed directly by the repression were generally family-based and included Las Madres de Plaza de Mayo ( Madres ), Las Abuelas de Plaza de Mayo ( Abuelas ), and Comisin de Familiares de Desaparecidos y Presos por Razones Polticas ( Familiares ) (Leis 1989: 15-16). The Madres originally began out of a group of mothers searching for their disappeared children and making
19 formal requests at government offices. By April of 1977, a group of 14 of them began gathering every Thursday in the Plaza de Ma yo in front of the Casa de Gobierno. They would wear white handkerchiefs on their head s and silently protes t the disappearance of their children (1989: 15). The Madres are perhaps the most internationally recognized group who protested the Argentine governmentâ€™s practice of di sappearances. They transformed their individual pain and searches for their childr en into a powerful poli tical movement. By marching every Thursday in the Plaza de Mayo, demanding that the government produce their children alive, the Madres are perhaps the most enduri ng symbol of this struggle against the dictatorship. The Madres became political by claiming they were apolitical, relying on a rhetoric based on trad itional roles of motherhood. Mara del Carmen Feijo comments on this strategy used by the mothers in her article, â€œWomen and Democracy in Argentina,â€ and writes, The Madres are notable in that they are strictly a womenâ€™s movement. This has often been explained as an extension of the sexual division of labor in Argentina, which gives mothers the responsibility of defending and protecting their sons and daughters. Because of the cultural a nd ideological conceptions of motherhood, which is the basis of Argentine feminine identity, motherhood might be expected to offer more security as a basis for political action than alternat ive roles. Although subsequent events proved that the noti on that women as moth ers would be safe from repression was only a myth, the legitim acy of the maternal appeal offered at least a symbolic refuge.1 (Feijo 1994: 113) The symbolic politics of the Madres succeeded in confronting the dictatorship both in the domestic arena and on the inte rnational stage. Not only did the Madres engage in their weekly protest in th e Plaza de Mayo, members of th is group visited the U.S., 1 Lt. Alfredo Astiz infiltrated the Madres by claiming his sister had disappeared and using the pseudonym of Gustavo Nio. In December of 1977, Azu cena Villaflor de Vicen ti, a leader of the Madres , was abducted and never seen a live again (Nino 1996: 59).
20 Canada and Europe in 1978. They sent re presentatives to different international organizations, including the Organization of American States (OAS) and the United Nations. Additionally the group was nomina ted for the Nobel Peace Prize in 1980, an international recognition of their work in c onfronting the dictatorship (Brysk 1994: 52). The Abuelas , an offshoot of the Madres, were women whose adult children had disappeared and they focused on finding th eir grandchildren who had either been abducted or whom they believed to have been born in captivity and then given to other families to raise (1994: 48). The group of Familiares included male relatives and focused on the disappearance of their relatives as a part of a political repression. These relatives gathered information, supported vic tims and other relatives of the disappeared, and mobilized protest of the government, but we re less engaged in symbolic politics than were the Madres or the Abuelas (1994: 49) . Human rights groups active in Argentina during the dictatorsh ip also included general civil-liberty orga nizations such as the Liga Argentina por los Derechos Humanos ( Liga ), the Asamblea Permanente por los Derechos Humanos (APDH), and the Centro de Estudios Legales y Sociales (CELS) (1994: 45-47). The Liga was founded during the 1930s and was originally a response to the persecution of the Co mmunist Party. The Liga co-founded the International Federation fo r the Rights of Man, an organization which has a permanent seat at the United Na tions. The ADPH was very active during the dictatorship and succeeded in documenting al most 6,000 disappearances, information that was used in international campaigns and dom estic investigations during the Alfonsn administration (1994: 46). CELS was formed by a group of lawyers and combined the Ligaâ€™s legal strategies with ADPHâ€™s information gathering (1994: 47). CELS is affiliated
21 with the International Committ ee of Jurists in Geneva and the International League for Human Rights in New York (Leis 1989: 17). Other movements that fought for human right s were religious organizations such as Servicio Paz y Justicia (SERPAJ), the Movimiento Ecumnico por los Derechos Humanos ( Movimiento Ecumnico ) and the Movimiento Judo por los Derechos Humanos ( Movimiento Judo ) (Brysk 1994: 49-51). SERPAJ was founded in 1974 by Adolfo Prez Esquivel, an activist who won the Nobel Peace Prize in 1980 for his human rights work in Argentina (Leis 1989: 16). SE RPAJ took an active ro le in organizing and assisting those affected by the repression. It also helped to found the other two religious movements listed above (Brysk 1994: 51). The Movimiento Ecumnico , founded in 1976, was formed by Protestant and Catholic clergy to provide suppor t, assistance, and information to families affected by the dictatorshipâ€™s repression. Since the activists were clergy, with international ties as representatives of their churches, this organization was a moral counterweight against the di ctatorship (Leis 1989: 15). The Movimiento Judo began working in 1977, but was formally recognized in 1982, and it used Jewish identity to bring attention to the disp roportionate share of Jews aff ected by the repression (Brysk 1994: 51). These nongovernmental organizations, when denied access to information about the whereabouts of the â€œdisappeared,â€ employe d a variety of strategies to continue challenging the dictatorship in the domestic sphere while using international contacts to pressure the government from the outside. This next section describes the complex transactions that operate within a transnational advocacy network,2 and include a vast 2 There is a growing body of literature on transna tional social movements, and the differences between these movements as opposed to an advocacy network as described by Keck & Si kkink. However, this
22 range of actors such as intergovernmental organizations, universities, professional organizations, foreign governments, the medi a, churches, and private foundations (Keck & Sikkink 1998: 9). Professional Campaigns: Reframing the Issue of Disappearances By analyzing several human rights campaigns, I will examine how this transnational advocacy network worked to pressure the Argentine government from outside the domestic sphere. For exam ple, a well documented element of the transnational advocacy network was Amnesty International and its important mission to Argentina in 1976. The military government invited Amnesty International to send a delegation as a response to inte rnational criticism. Subse quently, Amnesty International published its report in 1977 denouncing the regimeâ€™s human rights violations and documenting the problem of â€œdisappearance sâ€ (AI 1977b). Amnesty International won the Nobel Prize later that year, a significan t event that legitimi zed its findings in Argentina. This information was crucial a nd inspired the American, French, Italian, and Swedish governments to denounce the military juntaâ€™s violations of human rights (Keck & Sikkink 1998: 104). Furthermore, this information led to another kind of pressure by the U.S. government: material leverage (1998: 23-24). The U.S. government reduced the planned level of military aid to the Argentine governme nt and U.S. officials met with the military junta to discuss the human rights problem. This U.S. action was based on information debate is beyond the scope of this thesis. For one view of the differences between these movements, see generally Sidney Tarrowâ€™s book, Power in Movement: Social Movements and Contentious Politics (1998: 176-195).
23 from Amnesty International, and informa tion received by Argentine NGOs, not from â€œofficialâ€ information received through the embassy or the State Department (1998: 105). This illustrates the most significant f unction fulfilled by the NGOs working in Argentina: information politics (1998:18-22). In a political climate where the detention and extrajudicial killi ng of thousands of people was bei ng termed a â€œdisappearanceâ€ and adamantly denied by the government, inform ation flows by eyewitnesses, victims and relatives of the disappeared was crucial to inciting political action, both domestically and internationally. Testimonies, letters, and eyewitness acc ounts became the facts relied upon by organizations. Keck & Sikkink rec ognize that the util ity of testimony for transnational actors differs and is filtered to meet the needs of the particular campaign (1998: 19). The most striking example of both this â€œfilteringâ€ of tes timony by transnational actors and the varying levels of interaction between these human rights activists can be found in several campaigns launched to prot est and challenge the Argentine governments detention and disappearance of professionals. I will examine three separate campaigns that all comprised an interaction of prof essional organizations, foreign governments, universities, NGOs and IGOs working to pre ssure the Argentine government to account for missing architects, lawyers, doctors and sc ientists. According to figures published by Argentinaâ€™s truth commission, Comisin Nacional sobre la desaparicin de personas (CONADEP), professionals are estimated to make up only 10.7% of the total numbers of disappeared people under the military dictatorship (CONADEP 1984b: 296). Although professionals made up a small am ount of the total reported cases of disappeared persons, these campaigns that focused around professionals were key
24 examples of how transnational actors picked certain cases as symbolic representatives of the greater human rights problem in Argentina. By reframing the issue of disappearances as one that affected all se ctors of the population, even pr ofessionals, these cases gave credibility to these human rights campaigns and undermined the Argentine governmentâ€™s assertions that this was an internal war against subversives and terrorists. Architects and Psychiatrists: The Mari o Tempone and Irene Orlando Campaign This campaign was focused around the disa ppearance of Argentin e architect Mario Tempone, his wife and his mother, Irene Or lando, a renowned psychologist. The main actors who made up this network were domes tic and international human rights groups, professional organizations, universities, and the media. In response to reports from domestic NGOs about the disappearance of Tempone and his family, the international community moved to disseminate information and pressure the Argentine government. In a letter dated May, 1978, a Mexican ar chitect, Hugo Garzn Caballero, wrote to the National Chapters of the Unin Internacional de Arquitectos (UIA) to solicit the support of professionals in count ries all over the world to par ticipate in the international campaign to free Mario Tempone, his wife and mother (Garzn Caballero 1978; see Appendix A ). In the letter, he lists other renowned supporters of the campaign who included the Organizing Comm ittee of the XIII Congreso of the UIA, the Architect Giulio Carlo Argan, who was the mayor of Ro me, and Professor Jean Piaget, an eminent French psychologist. Thus, from the begi nning, this transnational campaign already included an international prof essional organization and profe ssionals from three separate countries, all who wrote separate letters to President Videla. In Mexico, various professionals and uni versities began pres suring the Argentine government through a letter-writing campaign, us ing Temponeâ€™s international reputation
25 in the academic community as leverage. An tonio Fuentes Flores, the President of the Federacin de Colegios de Ar quitectos de la Repblica Me xicana, wrote two letters to President Videla in Argentina ( see Appendix A ). Fuentes Floresâ€™ first letter, dated November 9, 1977, explained to President Vi dela about the upcoming international conference of architects that would take place in Mexico in October of 1978 and would have approximately 8,000 participants. Fuente s Flores explained the prestige of this conference, with representatives from ove r 750 universities worldw ide, and asked if President Videla could help the organization locate Tempone since the architect had not answered any of their previous requests to join them (Fuentes Fl ores 1977). The second letter, dated February 22, 1978, reiterated this request and highlighted the extreme importance to the international organization, and the conference planners in locating Tempone (Fuentes Flores 1978). The tone of these letters, also sent to the Argentine ambassador in Mexico, is very useful to illuminate how these actors utili zed leverage politics to pressure the military government (see Keck & Sikkink 1998:23). Th ese letters represent a moral leverage, attempting to â€œshameâ€ the government, by implying that their illegal detention of Tempone and his family is being scrutinized internationally by renowned professionals, and universities all over the wo rld. At the same time, the letters are written in a very formal, respectful tone a nd are not accusatory. Fuentes Flores addresses Vi dela as â€œExcelentsimo Seor Presidenteâ€ and both letters were pleas for Videlaâ€™s help in â€œla ubicacinâ€ or locating Tempone. While Fuentes Flores obviously knew the mili tary government was behind Temponeâ€™s disappearance, he appealed to the President as if Videla were not involved. The purpose
26 of the letter was not to directly confront Videla and the military government with direct evidence of human rights abuses, but to hi ghlight the international attention these disappearances had received and would conti nue to receive due to the international academic and professional prominence of the victims. Other letters written on behalf of the Tempone family to the Argentine government included a letter from Miguel Hierro Gmez from the Escuela Naci onal de Arquitectura in the Universidad Nacional Autnoma in Mexico, asking for help in locating Mario Tempone to accept their invitation for him to teach in January of 1978 at the University (Hierro Gmez 1978; see Appendix A ). This letter followed the same strategy as the Fuentes Flores letters, emphasizing Temponeâ€™s international academic and professional prominence and asking Videla respectfully to help locate him. In contrast from the letters written on behalf of Tempone, a letter from Switzerland signed by Jean Piaget and other eminent psycho logists and professors specifically asked President Videla to intervene on behalf of Temponeâ€™s mother, Irene Orlando (Piaget et al 1978; see Appendix A ). In this letter, they deta iled eyewitness accounts of Orlandoâ€™s abduction and suggested that the authoritie s made a mistake in abducting such a prominent, non-political psychologist. Th e letter emphasized Orlandoâ€™s professional accomplishments and reputation, and insisted that she had no political aspirations and would never do anything illegal except inquire into the disa ppearance of her son and his wife, who had disappe ared earlier in 1977.3 However, the letter emphasized that nu merous people in Switzerland and all over the world were waiting impatiently for just and necessary action on Videlaâ€™s part. The 3 Mario Tempone was abducted in April of 1977, and Irene Orlando disappeared in August of 1977 (CONADEP 1984a: 326, 444).
27 letter noted, â€œLâ€™science, appa rtenant lâ€™humanit entiere, ne connat pas de frontires gografiques ou politiquesâ€ (â€œScience bel ongs to all of humanity, it does not know geographic or political boundari esâ€). This letter was extrem ely important because the use of moral leverage was more direct. It specifically addressed the disappearance and detention of Orlando at the hands of Argen tine officials and aske d Videla not only to â€œlocateâ€ her, but to interv ene and release her (Piaget et al 1978). Furthermore, it directly challenged the governmentâ€™s assertions that only political subversives were being detained by mentioning Orlandoâ€™s scientific accomplishments, and noting that as a scientist she was not a political actor. Additionally, copies of the letter were also sent to other Argen tine authorities such as the Ministry of Justice, the Argentin e Ambassador, and to the News Agencies in Switzerland. Not only was this group of prof essionals directly pressuring the Argentine government, it also involved another important ac tor in this network, the news media. By involving the news media, these professional actors in the campaign were also engaging in information politics, by spreading the information across national boundaries and within their own countries. Furthermore, some of these actors engaged in letter writing to ot her professionals in other countries for the purpose of dissemina ting information about the disappearance of individuals. For example, a letter from Dr. Alfonso Macas Moreno, the Mexican President of the Sociedad Psicoanaltica Mexicana, informed Dr. Jacov Katwan, a German psychologist, of the international campaign to free Orlando and her relatives, Tempone and his wife. In his letter, Dr. M acas Moreno included a copy of the telegram he had sent to the military Junta in Argentina. The telegram stated the Mexican
28 organizationâ€™s solidarity with these detain ed people, demanding that the government guarantees the life and respects the human rights of Orlando and her family. This telegram was an example of direct moral le verage on the government, but the letter is evidence of a more complex aspect of these transnatio nal campaigns. Dr. Macas Moreno is also transmitting information to a German colleague along with ample information about the tragic events in Arge ntina, including letters of solidarity from national and international groups (Macas Moreno 1978; see Appendix A ). The supplementary materials sent out with this letter included detailed information about the professional accomplishments of both Tempone and Orlando. The title of one document reads â€œQu han hecho para merecer esto?â€ (What have they done to deserve this?). Although the military repression was pr esumably political in nature, the document does not address any alleged political affilia tions, but focuses on extensive professional accomplishments. Additionally, attached to th is document were lists of other architects and psychologists who had been detained or disappeared by the military government and reports on repression against mental health wo rkers in Argentina (M acas Moreno 1978). This compilation of materials that Dr. M acas Moreno was distributing to another colleague in Germany highlights an importa nt strategy employed in different human rights campaigns throughout th e dictatorship. The use of Tempone and Orlando was a strategy to highlight the greater trend of repr ession against architects and mental health professionals. The goal was not just to pr essure the government to free Tempone and Orlando, but to illuminate an overwhelmi ng trend of disappearances among certain professions and within Argentina generally. In this respect, these professional campaigns were a classic use of symbolic politics. By using a specific case to illuminate a greater
29 human rights problem, the activists were identifying and interpreting these events symbolically. The disappearance of these professionals were used to represent the disappearances as a problem that affected all sectors of the population. These events then became a catalyst for the entire networkâ€™ s growth (see Keck & Sikkink 1998: 22). In addition to professional associations, universities and intern ational human rights organizations, information about Mario Te mpone and Irene Orlando, as well as other professionals, was being exchanged between th e U.S. embassy in Argentina and the State Department. The U.S. State Department sent a telegram to the U.S. embassy in Buenos Aires, dated April 1978, with a subject line that read, â€œDisappearance of Mario Temponeâ€ (U.S. State Department 1978a). In that telegram, th e State Department informed the Argentine embassy that they had received a request from a Congressman, Donald Fraser, to look into the disapp earance of Tempone and his mother. A later telegram from the embassy to the State Department in October of 1978 reported that the Government of Argentina ha d replied to the U.S. governmentâ€™s requests into human rights cases. Argentinaâ€™s govern ment had responded th at it â€œhad no records of the detention, nor any information regardi ng the whereabouts of th e following cases of interest to the department.â€ The embassy th en listed various disappe arances that the U.S. government was officially investigating, incl uding Temponeâ€™s and the organization that had reported these people to be missing. In Temponeâ€™s case, Amne sty International had documented his case and passed that informa tion on to the U.S. government (U.S. State Department 1978c). This is a key distinction because the in formation about the disappearances was not originally being passed through official channels from Arge ntina to the United States.
30 Rather, through the Argentine governmentâ€™s deni al of the detention or killing of these disappeared individuals, the U.S. government had to rely on outside sources such as Amnesty International or NGOs. Armed with th is information, the U.S. could then make inquiries in Argentina through th e embassy and decide what types of pressure to apply on the Argentine government (s ee Keck & Sikkink 1998: 105). The Disappeared Doctors and Scientists Another important function of the internati onal system was to provide legitimacy to the Argentine human rights movement (Brysk 1994: 55). The La wyersâ€™ Committee for International Human Rights,4 a human rights group based out of the United States, published a report in September 1978 entitled, â€œHuman Rights in Argentina: Case Histories of Arrested, Abducted and Disapp eared Doctors and Scientistsâ€ (Lawyersâ€™ Committee 1978). In the introduction, Care Gi nsburg, from the Northeastern University School of Law, noted that during 1978, various newspapers in the United States ran a series of advertisements that purported to pe rsuade the American public to associate those who had been harshly treated by the Argen tine government with terrorist activities5 (1978: 1). Ginsburg wrote that th is report refuted these ads, a nd that the cases listed were only a small amount of the total number of cas es of human rights abuses in Argentina (1978: 2). 4 The Lawyersâ€™ Committee for International Human Rights is now called Human Rights First. 5 One of these advertisements ran in the New York Times in July of 1978, and had the headline of â€œArgentina: The Whole Truth.â€ In response to articles that had appeared in the United States with reports of â€œterror, torture, concentration camps, and murderâ€ occurring under the military government, a group of â€œprivate Argentine citizensâ€ purportedly placed this advertisement. It details the â€œMarxist subversionâ€ present in Argentina and the necessity of a military government to â€œensure the survival of the state itself and provide a bridge to a democratic government free of terrorismâ€ (New York Times Display Ads 318321 July 30, 1978: E7-E10).
31 The report included letters from family me mbers detailing the circumstances of the victimâ€™s arrest and disappearance, persona l testimonies, and letters from released prisoners detained and tortured by the military government. Additionally, the report included news articles from various news media sources, from Argentina and abroad, detailing the disappearance of different prominent doctors an d scientists. While there was a campaign to discredit the victims of human rights violations in Argentina by placing ads in American newspapers such as the New York Times, organizations like the Lawyersâ€™ Committee ran a counter-campaign. Additionally, by havi ng an international organization like the Lawyersâ€™ Committee filter and disseminate testimonies and case histories of individuals, they gave legitimacy to the domestic organizations working in Argentina. Similar to the campaign to free Mario Tempone and Irene Orlando, this report focused on disappeared professionals. Case 2 in the report described the disappearance of Dr. Federico Alvarez Rojas, a physicist who worked for the National Atomic Energy Commission in Buenos Aires, and his wi fe. The report noted that the Amnesty International Report â€œRepression Against Scie ntistsâ€ also documented the disappearance of Dr. Alvarez Rojas. The report also include d news articles about his disappearance that appeared in the Buenos Aires Herald and the science magazine, Nature. Additionally, in response to the disappearance of Dr. Alvar ez Rojas and other scie ntists, the National Academy of Sciences sent a three-member delegation to Argentina in Spring, 1978 to find information about certain scientists whos e cases they had taken. However, the NAS delegation did not find information about any of the cases from the government (Lawyersâ€™ Committee 1978: 5).
32 This case illustrates the mechanism behi nd the â€œboomerang effectâ€ (see Keck & Sikkink 1998: 13). Family members in Argentin a had taken legal actions such as filing a complaint with the Federal Police, filing two wr its of habeas corpus with the courts, and formally requesting information about the c oupleâ€™s location from the Ministry of the Interior (Lawyersâ€™ Committee 1978: 5). In th is respect, family members were blocked from receiving any information from the gove rnment and legal channels were blocked between the government and these domestic actors. This situation created an environment where family members and do mestic NGOs had to bypass the state and instead contacted internationa l organizations to pressure the Argentine government from the outside (see Keck & Sikkink 1998: 12). The Lawyersâ€™ Committee Report focuses on information and symbolic politics, by interpreting and pres enting information about cases in Argentina that was then disseminated in other countries su ch as the United States. In addition to the case of Dr. Alvarez Rojas, the report included 18 other accounts of disappeared doctors, scientists and their families. In other cases, the actual letters written by family members detailing the disappearance of these victims were incl uded. In each letter, the writer detailed the legal strategies exhausted domestically before writing the letter to an outside organization. Some of the letters were addr essed to Amnesty International, while others were sent to organizations such as the International Fe deration for Human Rights (see Lawyersâ€™ Committee 1978: 57-58, 14-15). At the beginning of each collection of docum ents related to a pa rticular case, the Lawyersâ€™ Committee wrote a summary of the events surrounding each personâ€™s disappearance. A lot of these summaries re ference reports by Am nesty International,
33 such as â€œRepression Against Psychiatristsâ€ or â€œArgentina: Report on Repression of the Medical Professionâ€ (1978: 78, 56). By referencing news acc ounts, and reports such as ones published by Amnesty International, the Lawyersâ€™ Committee attempted to legitimize information surroundi ng disappearances in a climat e of disinformation by the Argentine government. In the field of human rights, technical a nd statistical information is not always available, especially since â€œofficialâ€ sour ces were discrediting the victims and denying their detention by the government. The Lawyersâ€™ Committee was engaging in a twolevel approach to information, by referencing official sources of information such as news articles, Amnesty International Repor ts, and the NAS delegation to Argentina, along with testimonials and letters of indi vidual cases (see Keck & Sikkink 1998: 21). By spreading both types of information, te stimonials and repo rts by international organizations, the Lawyersâ€™ Committee wa s disseminating both technical, factual information, and putting a human face to the ab stract concept of th e â€œdisappearanceâ€ of people in Argentina. The sources of informa tion present in this report represent a dense network of information exchange between act ors in Argentina and in other countries, a factor that is crucial for the boomerang pattern to function. Repression Against Lawyers The Bar Association of New York City is sued a publication titl ed, â€œReport of the Mission of Lawyers to Argentina April 17, 1979.â€ The Bar Association sent a delegation to Argentina in or der â€œto inquire into the tr eatment of lawyers and the administration of justice in that nation.â€ The Association was responding to reports about the widespread detention, disappearance and to rture of lawyers in Argentina, brought to their attention by the Lawyersâ€™ Committee for International Human Ri ghts. Furthermore,
34 the Lawyersâ€™ Committee asked the Bar Association to send that delegation of lawyers to Argentina and also provided background info rmation for the Associationâ€™s trip to Argentina (Bar Association 1979: 1). This connection between an international nongovernmental organization, the Lawyersâ€™ Committee, and a professional orga nization in New York City that includes over 12,000 members, highlights the complex in teractions of this advocacy network (1979: 2). The Lawyersâ€™ Committee, by engagi ng in information and symbolic politics, also used its connections with other organizations to provide a different type of service to the human rights network. The Associationâ€™s trip to Argentina, also endorsed by the American Bar Association (1979: 2), represen ted a crucial connection between domestic NGOs acting in Argentina and internationa l organizations such as the Lawyersâ€™ Committee. Before leaving for Argentina, the Associa tion not only reviewed materials prepared by the Lawyersâ€™ Committee, but also reports prepared by Amnesty International, the International Commission of Juri sts, and other organizations (1979: 3). This information flow was crucial in preparing th is delegation for its trip to Ar gentina. The delegation also reviewed the Argentine Constitution, decree s passed by the military government, and international treaties that Argen tina was a party to (1979: 3-4). The President of the New York Bar Associat ion sent a letter to the President of Argentina, informing him of the upcoming mission and requesting cooperation from the government. The Argentine embassy replied th at they would be we lcome in Argentina (1979: 2). While in Argentina, the A ssociation met a delegation of the Union Internationale des Avocats (UIA) which includ ed members of the Italian and French Bar
35 Associations (1979: 4-5). While in Argent ina, the Association also met with Bar Associations in Argentina, families of disa ppeared lawyers, and domestic NGOs such as the APDH and the Madres (1979: 5). They also recei ved written case histories of disappeared individual s from the APDH, the Movimiento Ecumnico and the Familiares de Desaparecidos (1979: 4). This delegationâ€™s trip to Argentina high lights the interactions between domestic NGOs working in Argentina, different na tional organizations, and international nongovernmental organizations. Thus, these international pressures were not acting independently but had a close connection wi th domestic NGOs. Both the Lawyersâ€™ Committee campaign and the NY Bar Associationâ€™ s report demonstrate how international organizations take the demands of domes tic NGOs, and â€œamplifyâ€ this message by providing international attention to the issue.6 Additionally, the delegation met with the U.S. ambassador and embassy staff, as well as various officials in the Argentine gove rnment including future President Viola, a member of the ruling junta and commander-in-ch ief of the armed forces, as well as the Argentine Minister of Justice and the Pres ident of the Supreme Court (1979: 5). The resulting report presented a legal analysis of the prison conditi ons and treatment of prisoners under Argentinaâ€™s penal code, the Constitution, and the countryâ€™s international treaty obligations. The re port concluded that even under a â€œstate of siegeâ€ the government had exceeded its powers and by syst ematically abusing, torturing and killing 6 Keck & Sikkink describe how international groups were able to take the symbolic and information politics used by domestic NGOs and then â€œamplifyâ€ these demands and project them onto the global arena. From there, the demands were â€œechoed backâ€ into Argentina (See Keck & Sikkink 1998: 107).
36 â€œthousands of â€˜disappearedâ€™ persons,â€ the Arge ntine government had vi olated all of these legal obligations (1979: 37-38). By examining Argentinaâ€™s legal obligations , the Bar Association was venturing into a different form of pressure, that of acc ountability politics (see Keck & Sikkink 1998: 2425). Since Argentina had already committed itself to certain legal norms, both domestically in the Constitution and through the penal code, and in ternationally through treaty obligations, the A ssociationâ€™s report exposes the distance between the governmentâ€™s discourse and practice. The wide dissemination of this type of information by actors such as the Bar Association in the advocacy network exposed Argentinaâ€™s violation of both domestic and in ternational legal norms to a wide audience. As I will explore in a later section, the Argentine government was very concerned about its international image in relation to the hu man rights issue as early as 1976. Thus, by demonstrating the gap between Argentinaâ€™s lega l obligations and actual practice, this type of report was embarrassing to the Argentine gov ernment and contributed to the pressure it faced in the internatio nal arena related to its human rights practices. Finally, the report also included a list of de tained lawyers, incl uding their place of imprisonment, followed by a list of disa ppeared lawyers (Bar Association 1979: Attachment to Report). By focusing on the dete ntion of lawyers, the report symbolically exposed the dire legal situation faced by Arge ntine citizens. Even lawyers, those who were supposed to stand for the rule of law and defend the population against such atrocities, were arrested or disappeared just for challenging the governmentâ€™s human rights violations (Bar As sociation 1979: 41-42).
37 Targeting Foreign Governments: Enlisting a More Powerful Ally Part of the success of the transnational advocacy network came not just from enlisting the help of international actors, but of enlisting governments, such as the United States, who had the capability to use material leverage to pressure the Argentine government. Governments such as France a nd Sweden already had strained relations with Argentina as a result of the disapp earance of French and Swedish citizens in Argentina. In France, the case of two French nuns who had disappear ed at the hands of the military in 1977 was a crucial point in the foreign relations between these two countries. France demanded that Argentina release the nuns who had disappeared, which had made a total of eight Fr ench citizens who had disappear ed in Argentina (â€œProtesta Pars por el secuestro de dos monjas en Argentinaâ€ 1977). The disappearance of the nuns not only caught the attention of the French government, but it also attracted the attention of the United St ates as well. A telegram dated April 1978 from the U.S. Embassy in Bu enos Aires, is titl ed â€œConversation with President Videla on Nunâ€™s Death.â€ In the telegram, the U.S. ambassador details his meeting with President Videla, as the ambassador informed Videla that the reports of the nunâ€™s death had seriously damaged the U.S. governmentâ€™s view of Argentinaâ€™s progress on human rights. President Videla responded â€œthat he was aware that the disappearances [of the nuns] had a seriously adverse effect upon the worldâ€™s view of Argentina and circumstances of the disappearances must be discovered and those responsible judgedâ€ (State Department 1978a: 2). However, Hill noted that the French Ambassador had informed him that the government of France â€œhad concluded that it is fruitless to press the GOA [government of Argentina] further on the whereabouts of th e nunsâ€”bilateral relations had now become
38 severely strained.â€ France instead fo cused on pressuring Argentina for improved treatment of the prisoners, for the government to either hold trials for political prisoners or release them, and to regularize arrest proc edures (State Department 1978a: 3). Sweden and Italy also had citizens disappear in Argen tina, but like France, their concern extended beyond their own citizens and by 1977 thes e governments all had denounced the Argentine militaryâ€™s human rights abuses (Keck & Sikkink 1998: 104). U.S. human rights policy toward Arge ntina, and toward many other Latin American countries, was not always consiste nt nor was the U.S. government always a reliable ally for human rights activists. In April of 1978, for example, the U.S. ambassador, Robert Hill, sent a telegram to the State Department, reporting that the government of Argentina â€œhad been somewhat surprised by indications of such strong concern on the part of USG [U.S. government] in human rights situation in Argentina.â€ Secretary of State Kissinger had met with the Foreign Minister of Ar gentina, Guzetti, in June of 1976, and Guzetti said their impression was that the U.S. governmentâ€™s main concern was not with the human rights abus es, but that Argentina get the terrorist problem under control quickly (State Department 1976e: 2). Hill met with President Videla in Sept ember 1976, shortly after his meeting with Foreign Minister Guzetti, and reassured him th at the U.S. was â€œseriously concerned with human rights issue not just in Argentina but around the world.â€ Hill went on to inform Videla of the various actions the U.S. govern ment might have to take if Argentinaâ€™s human rights situation did not improve. While the U.S. was planning on voting for Argentinaâ€™s loan in the Inter-American Deve lopment Bank, Hill warned Videla that, due
39 to new legislation, the Argentina would not be eligible for economic or military aid if it continued to perpetrate gross human rights violations (State Department 1976a: 1). Videlaâ€™s response was that Argentina wa s fighting a war against international communism that had almost taken over their country (1976a: 2). Videla further seemed perplexed by the disparity between the positi on he believed the Secretary of State had taken on the human rights issue during their meeting and the position of the lower level officers in the U.S. government. Hill reiterat ed that the Secretary of State and other senior officers wanted to avoid a human ri ghts problem in Argentina, and Videla noted that â€œnothing must be allowed to ups et good relations with U.S.â€ (1976a: 3). The confusion between the two positions in the U.S. government is highlighted by the disparity between the position the Secret ary of State espoused to Videla and the position he took officially among other U.S. gove rnment officials. In a Memorandum of Conversation between officials in the State Department and officials from the Argentine government, Acting Secretary of State Charle s Robinson spoke candidly with Argentine Foreign Minister Guzetti. R obinson explained that it was necessary to know how long these â€œtough measuresâ€ would continue because it would be difficult to offer support to the Argentine government due to pressures fr om the American people. Robinson noted, The problem is that the United States is an idealistic and moral country and its citizens have great difficulty in comp rehending the kinds of problems faced by Argentina today. There is a tendency to apply our moral standards abroad and Argentina must understand the reaction of Congress with regards to loans and military assistance. The American people, right or wrong, have the perception that today there exists in Argentina a pattern of gross violations of human rights. (State Department 1976d: 3) This conversation highlights the fact that human rights and Argentinaâ€™s perceived reputation abroad was already of concern by October of 1976. Although the U.S. State Department, in these early conversations w ith Guzetti, appeared to be supporting the
40 Argentine militaryâ€™s offensive against comm unism, various official s kept noting that it was crucial for Argentina to convey the purpose behind this offensive to the international community. In the Memorandum of Conversat ion, Guzetti noted that the â€œterroristsâ€ were able to easily reach American public opinion, but the Argentine government was having a more difficult time (1976d: 4). In other words, the campaign of info rmation launched by the transnational advocacy network had succeeded very early in reaching American public opinion even in a climate of disinformation by the Argentine government. While Argentina maintained that the only people being detained wher e terrorists and subversives, the advocacy network had been able to disseminate inform ation about the actual people who had been the target of this repression. Thus, the campaign of information politics that the transnational advocacy network waged in the United States and in other countries was a crucial element in maintaining U.S. public opinion in opposition to Argentinaâ€™s human rights practices. However, U.S. public opinion did not appear to matter when senior officials in the U.S. government were unofficially supporti ng the Argentine govern ment. In another Memorandum of Conversation between Secret ary of State Henry Kissinger and Guzetti, Kissinger noted: Look, our basic attitude is that we woul d like you to succeed . I have an oldfashioned view that our friends ought to be supported. What is not understood in the United States is that you have a ci vil war. We read about human rights problems but not in the context. The quicker you succeed the better. (State Department 1976c: 3-4) It was difficult for the American publicâ€™s moral outrage at the human rights abuses to convert into material pressure by the U. S. government, when the Secretary of State was giving the military government unofficial support. Even though Kissinger and the
41 State Department officially denied taking this stance with Guzetti in telegrams exchanged between the U.S. Embassy in Buenos Aires and the State Department, the damage had already been done. Kissinger reassured Amba ssador Hill that Guzetti â€œheard only what he wanted to hearâ€ and that he wished fo r the Ambassador to impress upon the Argentine government that the U.S. government â€œregards most seriously Argentinaâ€™s international commitments to protect and promote fundament al rightsâ€ (State Department 1976b: 2). These statements were in clear contrast with Kissingerâ€™s actual convers ation with Guzetti. Thus, it was difficult for the Ambassador to utilize any form of leverage against the Argentine government when Videla and Guzetti were getting different signals from U.S. senior government officials. When President Jimmy Carter assumed office, human rights took center stage on the Presidentâ€™s foreign policy agenda. During visits to Argentina, U.S. Deputy Secretary of State Warren Christopher met with the Madres and CELS leader Emilio Mignone (Brysk 1994: 53). When the Secretary of St ate Cyrus Vance visited in 1977, he handed the military leaders a list of cases to investigate, prepared by the Argentine Information Service Center. This list included 7,500 cases and was a partial list of an estimated 15,000 political prisoners (Committee on Inte rnational Relations 1978b: 33). With the change in administration in th e United States and the new focus on human rights, the domestic human rights organizatio ns working in Argentina now had access to official channels of protest through the U. S. government. With this connection to a strong ally, the domestic NGOs and internati onal organizations were able to pass on information to the United States. This inform ation could then be reflected in U.S. foreign
42 policy, including the use of material leverage , something not available to less influential political actors. The transnational advocacy network also played an im portant official role in lobbying the U.S. government for policies that reflected the governme ntâ€™s disapproval of Argentine human rights practices. The Argentine Commission for Human Rights (CADHU), was an NGO formed by a group of Argentine lawyers and it became a national and international organization with permanent representatives in Geneva, Rome, Paris, Mexico City, and Wa shington, D.C. (CADHU 1977; see Appendix B ). A letter dated April 15, 1977, addresses committee meetings in the House of Representatives and the Senate that would be debating the issu e of military aid to Argentina. CADHU encouraged people to write letters and telephone calls to members of these key committees in the U.S. Congress (Talamante & Lofredo 1977; see Appendix B ). In a variety of hearings dur ing the dictatorship, members of many of these actors in the advocacy network testified before C ongressional Committees about human rights practices in Argentina. A dditionally, reports published by these NGOs and international organizations were submitted to the Committ ees to provide support to the evidence of human rights abuses in under the dictator ship. For example, in a 1981 hearing on â€œHuman Rights and U.S. policy in the Mult ilateral Development Banks,â€ members of organizations such as Amnesty International and the Lawyersâ€™ Committee for International Human Rights testified (Committee on Banking, Finance and Urban Affairs 1981: 211-347). Additionally, a representative of the NY Bar Association also testified and presented the Associationâ€™s â€œReport of th e Mission of Lawyers to Argentinaâ€ (1981: 392-422).
43 In February 1977, the Carter Administra tion decided to reduce the Security Assistance Program Budget for Argentin a in 1978. The Ford Administration had recommended $32 million be awarded to Arge ntina, but the Carter Administration reduced this to $15.7 million, citing human ri ghts violations as the reason for the reduction7 (Committee on Inte rnational Relations 1978b: 31) . Furthermore, the U.S. Congress passed the Internat ional Security Assistance Act of 1977, prohibiting all military aid and sales after September 30, 1978 (1978b: 32). In 1978, the State Department blocked an Export-Import Bank loan to Argentina based on the Carter Administra tionâ€™s human rights stance. Jo hn Moore, the President of the Export-Import Bank, commented that Arge ntina would have qualified for the loan based on economic or financial considerations . A spokesman for the Bank noted that it was the first time the Bank had denied a loan solely on human rights considerations. Furthermore, U.S. representatives in the World Bank and the Inter-American Development Bank had begun to withhold s upport or vote against other loans to Argentina in these multilateral lending instit utions (Committee on International Relations 1978a: Appendix 3). In these ways, the U.S. became an important part of the advocacy networkâ€™s pressure on the Argentine government. By using material le verage and blocking financial assistance to Argentina because of the human rights viol ations, the U.S. was able to pressure the military junta in a way that these letter-writing campaigns could not. Moreover, the U.S. interest in human right s cases, also functione d to protect domestic human rights actors in Argentina. 7 The military junta declared this was a violation in the internal affairs of their country, and rejected the $15 million offered for 1978 (Committee on International Relations 1978b: 31).
44 When Videla visited the U.S., President Carter handed him a telegram from APDH reporting the disappearance of the leader of As amblea, Alfredo Bravo. Partly as a result of his disappearance being officially r ecognized, Bravo was later released by the dictatorship. Additionally, when the entire leadership of CELS was imprisoned, the U.S. told Videla and other government officials that it could hurt Ar gentina in the U.N. Human Rights Commission. Emilio Mignone, a CELS leader, was arrested, but later released. Police had told witnesses he would not disappear; Mi gnone was too famous (Brysk 1994: 55). The Message â€œEchoesâ€ Back to Argentina By examining the effects of the human ri ghts campaigns separately, such as the Campaign to free Mario Tempone and Irene Orlando, it is a little more difficult to ascertain under what circumstances a campa ign has been successful. Mario Tempone and Irene Orlando were never officially â€œlo catedâ€ or seen alive again. Both names appear in CONADEPâ€™s final re port on the Disappearances u nder the military government in Argentina (CONADEP 1984a: 327, 444). This particular campaign crossed national borders and encompassed a broad range of domestic organizations, professional associations, foreign governments, internationa l organizations, universities, and the news media in countries such as Switzerland, Mexi co, Germany, and the United States. In the end, perhaps even if the Argentine govern ment had wanted to â€œlocateâ€ Tempone and Orlando to pacify the rising tide of interna tional pressures, it was probably too late. It is difficult to discuss the successes and failures of such campaigns, when real people are detained, abducted, and presumab ly, extra-judicially killed by their own government. In the cases reported by the Lawyersâ€™ Committee for International Human Rights, all but three of the nineteen listed cases were listed in CONADEPâ€™s final report
45 (Lawyersâ€™ Committee 1978: Table of Cases; see also CONADEP 1984a). Even with all of the information exchange, reports, and transnational cooperat ion between different actors attempting to pressure the Argentine, it ultimately did not make a difference for these individual cases.8 When viewed in the broader context of all of these campaigns taken together, however, the success of the transnational advocac y network lies in its ability to pressure the Argentine government to curtail its practi ce of disappearances. Between 1976 to 1978, the Argentine government denied repo rts of these â€œdisappearancesâ€ and wrongdoing by the military officials (Keck & Sikkink 1998: 106). However, by 1978, the government was taking the international pressure seriously and welcomed various international delegations to the country including the Inter-American Commission for Human Rights (1998: 107). Based on thei r visit to Argentina in 1979, the IACHR concluded that many of the â€œdisappearedâ€ pe rsons were actually dead, and those in charge of their capture or detainment were the ones responsible . Additionally, the IACHR opened individual cases to investig ate complaints received directly from Argentine citizens (OAS 1983: 46). Based on the IACHRâ€™s conclusions, the Argentine government was further pressured to curt ail the practice of disappearances. By 1980, such international pressures had fo rced the government to relax the severe repression and censorship (Nino 1996: 60). Although human rights were not fully restored until after the military regime ha nded over power to a ci vilian government in 1983, after 1980, the practice of disappearances dropped signifi cantly. According to the 8 There are many notable cases when the internationa l pressures succeeded in releasing individuals from prison, but the focus here is on the massive pattern of disappearances that was targeted by the transnational advocacy network by using representative cases to sy mbolically reframe the issue for an international audience.
46 report published by CONADEP, approximately 70% of the disappearances documented occurred in 1976 and 1977. Another 10% of the total documented disappearances occurred in 1978, and by 1980 the practice of di sappearances had been virtually halted (CONADEP 1984b: 298). In this chapter, I have described how Argentinaâ€™s transnational advocacy network and pattern of pressure followed the â€œboom erang patternâ€ described by Keck & Sikkink (1998: 13). Domestic NGOs working within Ar gentina engaged in a variety of political strategies to disseminate information, and to symbolically and morally challenge the Argentine government. However, due to th e extreme nature of the repression, it was dangerous to directly challeng e the government and often th e requests for information of the whereabouts of most of the disappeared persons were denied. The domestic NGOs working within Argentina sought the support a nd aid of internationa l organizations, such as Amnesty International, and numerous othe r actors working in other countries. These transnational actors both directly pressured th e Argentine government and also pressured foreign governments. Countries such as the United States were then in a position to place material leverage on the milita ry dictatorship by cutting military aid and funding to Argentina. Figure 1 depicts the complex interac tions between the transnational actors that work ed within Argentinaâ€™s tran snational advocacy network. Based on the boomerang pattern develope d by Keck & Sikkink, it depicts how a combination of all of these actors applying pr essure on the dictatorship resulted in the juntaâ€™s â€œhuman rights problemâ€ or its loss of legitimacy in the international arena. As a result, by 1980 the practice of disappearance had been drastically curtailed, although full human rights were not restored until after the transition to democracy.
47 Figure 1. The Boomerang Effect in Arge ntina during the Military Dictatorship 19761983. (Adapted from the Boomerang Pattern developed by Keck & Sikkink 1998: 13).
48 The next chapter explores the military gove rnmentâ€™s collapse and the role of the transnational advocacy network as Argentina prepared to punish those responsible for human rights abuses. I will analyze the unique problems of transitional justice that may lead a government in Argentinaâ€™s situation to pass amnesty laws and pardons to preclude prosecution and pacify civil-military relations . Finally, I will examine how the advocacy network shifted its strategy after the dictatorsh ip to the issues of truth and justice, and how it used transnational litiga tion to pressure Argentina to revisit the issue of punishing those responsible for human rights abuses during the dictatorship.
49 CHAPTER 3 THE FIGHT AGAINST IMPUNITY: TRAN SITIONAL JUSTICE AND BEYOND On March 30, 1982, tens of thousands of people gathered in the Plaza de Mayo to join in one of the largest public protests against the military regimeâ€™s social and economic1 policies (Nino 1996: 61). Two days later, on April 2, 1982, the Argentine military invaded the Falkland/Malvinas isla nds (1996: 62). The British armed forces retaliated and the conflict ended with Argentinaâ€™s defeat in June of th at year. Argentinaâ€™s defeat in the Falkland/Malvinas conflict further divided the ruling junta, and ultimately led to the regimeâ€™s withdrawal from power (Pion-Berlin & Arcenaux 1998: 644). Argentina is the only Latin American c ountry in which the military suffered a defeat in an international conflict that immedi ately precipitated the regimeâ€™s collapse. As a result, the military was widely discredited and was unable to dictate the terms of the transition. In Argentina, the dictatorshipâ€™s collapse was especially significant since the military regimeâ€™s legitimacy was predicated upon being the â€œguardians of the national destinyâ€ (Cavarozzi 1986: 44). This type of military takeover reflected the historical mission of the armed forces in Latin America as the guardians and protec torates of democracy (Loveman 1999: 32). Since the armed forces played a critical role in the political consolidation and nation building of Latin America during the late 19th and 20th centuries, the military occupied the role of the national guardian of the na tion (1999: 27-31). Furt hermore, during that 1 Inflation had wavered between 100% and 150% during the years of the dictatorship, before soaring to 343% during 1983, the last year of the military dictatorship (Pion-Berlin 1996:63).
50 period, governments were still forming and there were no police forces or strong institutions that could meet the populationâ€™s needs. As a result, civilians had no place else to look for help to solve conflicts and to bring order than the military. This practice of looking to th e military as a political ar biter and protector of the nation would continue to pervade Latin Amer ican politics for much of the 20th century and helps explain the amount of military take overs during this period (1999: 59). In Argentina, however, the blame for the country â€™s problems did not rest with one leader, but with the military as an institution. The military had established authoritarian rule by placing a junta in power, and th ere were several different Presidents of the country between 1976-1983, as opposed to a single leader, such as General Pinochet in Chile Cavarozzi 1986: 44). While there had already been internal divi sions within the ruling structure of the junta, the militaryâ€™s defeat in the Falkla nd/Malvinas war contributed to a loss of legitimacy to the institution itself (Pion-Berl in & Arcenaux 1998: 644). Furthermore, the regime never created political parties or held elections, like during the dictatorship in Brazil, nor did it attempt to legitimate its regime through the presentation of a constitution through a plebiscite, such as in Chile. Thus, the Argentine regime was less institutionalized than in ne ighboring countries, but it also had no mechanism in place whereby it promised that the current situa tion of repression and authoritarianism was merely a transition to a better democratic society (Oâ€™Donnell & Schmitter 1986: 15). Although the regime would have liked to ne gotiate the terms of the transition, the military governmentâ€™s loss of legitimacy made the political parties reluctant to negotiate openly. Instead of a negotiated transition, general elections were set for October 30,
51 1983 (Nino 1996: 61). With the Argentine mil itaryâ€™s loss of legitimacy and the ensuing collapse of the ruling junta, the military unite d around the human rights problem, the least divisive issue among the armed forces.2 Faced with opposition from political parties and both national and international human ri ghts groups, the military published the Documento Final de la Junta Militar to officially deny their in volvement in human rights abuses (Pion-Berlin & Arcenaux 1998: 644). Just before the military issued this document, CELS had published a report that identified 47 clandestine dete ntion centers. Based on the te stimony of 65 survivors, the report also identified 700 people who had been seen alive in the detention centers, but were still missing. The militaryâ€™s document, howe ver, did not ever refer directly to this evidence that had been collected by CELS or other human rights groups and instead defended the need for â€œsecrecy in oper ationsâ€ (Americas Watch 1983: 5). The international community immediately moved to protest the content of the Documento Final . Americas Watch,3 an international human rights organization based out of New York, published a report in May of 1983, titled The Argentine Military Juntaâ€™s â€œFinal Documentâ€: A Call for Condemnation. In this report, Americas Watch criticizes the military government for denying that the disappeared were abducted, held at secret detention centers, and secretly executed (Americas Watch 1983: 3). Americas Watch refused to accept the military governmentâ€™s report as truth, because it was inconsistent w ith the eyewitness testimony, survivorâ€™s personal accounts, 2 Oâ€™Donnell and Schmitter cite the paradox that exists in regime transition: the mo re brutal and repressive the regimes were, the more the institutions such as the military and the people involved will block such a transition or remain a thr eat to the nascent democracy until receiving guarantees in the form of impunity laws or other political pacts (1986: 29). 3 Americas Watch has developed into a larger human rights organization called Human Rights Watch.
52 and other evidence published by human rights organizations th at clearly implicated the regime in these disappearances (1983: 4). This contrast between the â€œofficialâ€ account propagated by the military regime and the contrasting evidence from survivors, eyewitnesses, and other sources, highlights th e struggle faced by human rights advocates. When the very existence of the crime has b een denied by the so-called â€œofficialâ€ sources of information, the work by human rights groups to collect and document these cases was invaluable in creating a competing source of legitimate information. Beyond criticizing the Argentine government, Americas Watch lis ted international actors who had instantly condemned the Documento Final . Among them, several governments issued strong statements, such as the Italian governm ent, and the acting President of the European Economic Commun ity (1983: 7). The â€œcall for condemnationâ€ by Americas Watch appeared to be aimed mostly at the United States, for its failure to issue more than a statement that expressed it s â€œsense of disappointmentâ€ (1983: 12). In September of 1983, the military also attempted to pass the Ley de Pacificacion Nacional, a self-amnesty for â€œsubversion and ex cessive repressionâ€ committed between 1973 and 1982 (Pion-Berlin & Arcenaux 1998: 6 44). The law was criticized by people from different political part ies and human rights groups, and was held unconstitutional by several judges even before the transition to democracy (B rysk 1994: 61). However, the military government was not as concerned by these reactions, because the polls and public opinion indicated that the Peronist candidate, Italo Luder, would win (Nino 1996: 66). The Radical party candidate, Ral Alfonsn, publicly denounced the law and called for its nullification i ssuing a statement ent itled â€œIt is Not the Final Wordâ€ (Nino 1996:
53 62). In contrast, Luder, a constitutional lawyer, stated that a lthough he was opposed to the law, he did not believe it could be repe aled without violating the penal code and article 18 of the Constitution4 (1996: 65). Alfonsn turned human rights into a campaign issue, while many saw Luder and the Peronists as a return to a violen t past (Brysk 1994: 61). Luderâ€™s public campaign statements co ntrasted with his association with union leaders who had reputations for inciting violen ce. For example, the Peronist candidate for governer of Buenos Aires, Herminio Iglesias, was public ly associated with violent sectors of the labor moveme nt (Cavarrozi 1986: 47). Alfonsn and the Radicals focused on a call for a return to constitutional rule and by publicly denouncing what Alfonsn referred to as a â€œâ€˜trade unionist-military pactâ€™â€ that would allow for impunity and would preven t human rights trials under a Peronist government (Nino 1996: 66). Alfonsn defeated ultimately Luder in the 1983 presidential elections. Thus, the military regime was voted out of power without receiving any explicit guarantees from the incoming Presiden t. Moreover, Alfonsn won on a platform of human rights, setting up th e possibility that these human rights abuses would not go unpunished. Civilian Rule and Transitional Justice The new civilian President, Ral Alf onsn (1983-89), was able to pursue an aggressive program that focuse d on restoring the rule of law and redressing human rights abuses (Hunter 1997: 463). C ongress acted quickly to declar e the self-amnesty passed by 4 Article 2 of the Penal Code gave defendants the right to the most beneficial law existing from the time of the crime to sentencing, a nd by repealing this law, Luder argued it would violate article 18 of the Argentine Constitution which prohibits retroactive penal legisla tion. However, Carlos Nino and other lawyers published a response to this argument, claiming that by enacting the self-amnesty the military would violate article 29 of the Constitution, a pr ovision which prevents the executiv e from having extraordinary powers (Nino 1996: 65).
54 the military was void and nullified it w ith Law 23.040 (Nino 1996: 74). Additionally, under the Alfonsn administration, the government established the National Commission on the Disappearance of Persons (CONADEP) to investigate human rights abuses (Brysk 1994: 68-69). CONADEPâ€™s principal mandate was to investigat e the acts surrounding these disappearances and to identify where the remains of the bodies were located (Hayner 2001: 302). Based on the information collected, CON ADEP published its findings in a report entitled Nunca Ms (CONADEP 1984b). CONADEP worked for nine months and documented 8,961 desaparecidos or â€œdisappearedâ€ individuals , but emphasized that this was an open list (1984b: 293). Th e report did not include, in the list of victims, those who were survivors of detention and tortur e, temporary disappearances or those cases when the body was found and identified, those ki lled in real or â€œstagedâ€ conflict with the armed forces, forced exile, and disappear ances by the government before the 1976 coup (Hayner 2001: 302). CONADEPâ€™s work as an investigatory body highlighted again the critical role NGOs played in the documentation and dissemi nation of cases of disappearances during the dictatorship. CONADEP spent the first three weeks of the investigations attempting to get the NGOs to cooperate, and some of the Argentine NGOs gave the commission copies of their case files, and the names of these victims were included in the final report even if CONADEP didnâ€™t take the testimony firsthand. Even the families who didnâ€™t cooperate with CONADEP direct ly still had their testimony included in the commissionâ€™s report through the case files of Argentine NGOs who documen ted these cases during the dictatorship (Hayner 2001: 236-37). This inclusion by CONADEP of the information
55 gathered by these NGOs reinforced the legi timacy of the reports of disappearances documented by human rights NGOs and the impor tant role they played in gathering information. Some human rights groups, such as the Madres de Plaza de Mayo, criticized CONADEP because they believed it lacked r eal power (Brysk 1994: 71). Morever, the Madres actively opposed CONADEP and did not cooperate throughout the investigation (Hayner 2001: 236). They ultimately f eared that the low numbers reported by CONADEP would underestimate the victims of st ate-sponsored repression, and they also criticized that the commission did not rel ease the names of those implicated in the disappearances5 (Brysk 1994: 72). CONADEP submitted a separate confidential report to the President implicating individual people of human rights abuses that was leaked to the press and appeared in prin t soon after (Hayner 2001: 111). Although CONADEP did not have a judi cial mandate, and its work was controversial at times, it produ ced fifty thousand pages of files which it presented to Alfonsn on September 20, 1984. Nunca Ms became Argentinaâ€™s best seller and was translated into several langua ges (Nino 1996: 80). In response to these findings, Alfonsn elected for a legal solution to settle the i ssue of accountability for past human rights abuses committed by the military regime (Pion-Berlin & Arcenaux 1998: 647). 5 Human rights lawyers differ on when it is appropriate to name names. Juan Mndez, former legal counsel to Human Rights Watch, argued that in the absence of trials, naming individual perpetrators is especially important especially since it wonâ€™t interfere with another bodyâ€™s judicial powers. Jos Zalaquette, a prominent human rights activist and member of Chileâ€™s Truth Commission, argues that it is wrong to name people who have not had the opportunity to defend them selves. However, he believes that in certain cases, when the Commission has more legal or judicial responsibilities and procedures it is more permissible. His underlying argument is that everyoneâ€™s rights should be respected, no matter how grievously their rights were violated in the past (Hayner 2001: 128).
56 CONADEPâ€™s findings played a crucial role in the subsequent trial of the junta members, as the commission handed its files over to th e prosecutors, greatly aiding in the task of building cases quickly against the ni ne senior officials put on trial6 (Hayner 2001: 93). The trial of the junta members was not formally for the â€œdisappearanceâ€ of people since that crime did not exist at the time in any Argentine legislat ion or in legislation from any other part of the world. However, they were investigated and tried for crimes such as homicide and illegal and arbitrary detention (Ciancaglini & Granovsky 1995: 22). In Argentina, for a homicide to legally ha ve been committed, there had to be a body of the victim. Since with disappearances the absence of a body confirming the death of the individual was characteristic, it was more di fficult to investigate and bring cases of homicide (1995: 23). Not only did the prosecution have massi ve amounts of documentation collected by CONADEP, NGOs, and other domestic sour ces, 700 kilograms of international denunciations arrived from the United Nations alone (1995: 23). The trial began on April 22, 1985 and ended on August 14, with the senten ce issued in December of that year (1995: 25). The court sentenced five junta members, including two former presidents, to prison sentences (Rabossi 1993: 340). After the trial of the junta, the Federal Court of Appeals in Buenos Aires moved on to other military personnel (Rabossi 1993: 341) . In addition, victims and their families began filing complaints and by the middle of 1986 there were more than 3,000 cases just in the military courts. CELS made the transition from information politics under the 6 The Supreme Council of th e Armed Forces originally had jurisdicti on of these human rights trials, but in October 1984, the Federal Court of Appeals in Buenos Aires took over the case (Rabossi 1993: 340).
57 dictatorship and moved on to advocacy, filing more than 400 cases with the courts by 1984 alone (Brysk 1994: 80). From Justice to Impunity Holding former leaders accountable for human rights atrocities committed under their command was important politically and symbolically, and signaled a possible transformation of civil-military relations (Hunter 1997: 465). Meanwhile, Alfonsn also attempted to counter the size and power of the military by cutting Defense spending by 40% between 1983 and 1986 (Pion-Berlin 1996: 67). Between December of 1983 and October of 1984 alone, military salaries decreased by 25% ( 1996: 68). As a result, many members of the military had to look for second jobs or leave military service altogether. Argentinaâ€™s armed forces decreased fr om 153,000 men in 1983 to 78,000 in 1986 (1996: 76). While the armed forces were depleted in both size and funding, military officials were also facing protracted trials for human rights abuses committed during the dictatorship (1996: 77). These continued prosecutions of military officers led to increased pressures on the Argentine military and possible danger for th e stability of the nascent democracy (Hunter 1997: 466). By 1985, one-third of the 650 members of the military who had been named as defendants in these proceedings were st ill serving on active-duty. These measures taken by Alfonsn and the human rights trials led to growing military unrest (Brysk 1994: 80). As prosecutions grew in number and in unpredictability, Al fonsn and his staff attempted to find ways to curtail the scope and length of the tr ials (1994: 81). Alfonsn attempted to restrict the number s of those facing trial and succeeded in passing legislation, known as punto final , to create an end poin t by setting a 60-day limit for new indictments (Law No. 23.492; see Appendix C ). By the deadline, 400 cases had
58 gone through the system, an accomplishment that Prosecutor Moreno Ocampo described as the result of the powerful impact of the evidence collected by the human rights movement and in the trials of the juntas. Th e passage of this law, however, was seen as a defeat to the human rights movement si nce it prevented the prosecution of over 1,000 repressors already identified by testimony (Brysk 1994: 82). After the punto final deadline passed, military official s were still being called into court to settle the ongoing cases and civil-milita ry tensions escalated with the rebellion of junior officers during the Ea ster week of 1987 (Hunter 1997 : 465). In response to the rebellion, the Argentine Congre ss passed another law that granted amnesty to all those below the rank of colonel on the theory that they were only carrying out orders based on the â€œdue obedienceâ€ they owed to commanding officers in carrying out these offenses (Law No. 23.521; see Appendix C ). The law excluded torture and murder from the list of â€œatrocious and aberrant actsâ€ th at could not be presumed to be legitimate orders but left the possibility of punishment for rape a nd kidnapping. A human rights publication estimates that the number of pending cases we re reduced from 450 to 50 after the passage of the due obedience law (Brysk 1994: 83). President Carlos Menem went a step fa rther after he assumed office in 1989 and pardoned all military officers with pending hum an rights prosecutions, military officers involved in rebellions, and a few leftist guerr illas. In the face of international and domestic opposition, Menem extended these pard ons to include those already convicted of human rights offenses (1994: 84). Howeve r, Menem needed to guarantee political stability in order to deal with Argentinaâ€™s economic crisis and enact economic reforms. Since he was unwilling to make concessions to the military such as appropriating more
59 defense funds or granting the military more political independence, Menem sought to placate civil-military tensions and seek reconciliation with the armed forces by issuing these pardons (Hunter 1997: 466). The amne sty laws passed by the Alfonsn government and the subsequent pardons issued by Mene m together created a blanket impunity for military officials involved in human right s abuses under the military dictatorship. Throughout the Latin American experience of intermittent bouts of military rule, amnesty laws were a common feature of th e transition to democracy. In general, punishment for human rights violations was the exception rather than the rule and civilian governments often legitimized self-amnestie s passed by military governments or passed their own form of amnesties to promote th e consolidation of democracy (Loveman 1999: 215). In Argentina, from independence to the most recent transition to democracy in 1983, the recurring political pattern has been co nstitutional rule, rebellion, transition to a different form of government, and then a poli tical amnesty. Each time, amnesties played an important role in the reestablishment of constitutional rule, but they succeeded in obscuring the truth of the human rights abuses, and often prevented national reconciliation (V tolo 1999: 9). Although the passage of amnesty laws was not an anomaly in Argentinaâ€™s history, this â€œblanket impunityâ€ conferre d on those responsible for hu man rights violations under the military dictatorship was met with extreme opposition by the human rights movement. While the human rights movement had pursued successful strategies under the dictatorship to pressure the government to stop its practice of disappearances, after the transition to democracy, these domestic gr oups had to find new ways to influence and challenge the government. When the hum an rights groups in Argentina were
60 unsuccessful in lobbying the Alf onsn administration and the Congress to continue with the prosecutions of those implicated in human rights violations, they turned to information politics, a strategy that had worked under the dictatorship. In 1988, CELS published a book titled Cupables para la Sociedad, Impunes por la ley (â€œGuilty by society, Impune by the lawâ€). In this book, CELS published a detailed account of names, pictures and descriptions of those officials implicated in human rights abuses (CELS 1988). CELS published these de scriptions of those who had benefited from the passage of the amnesty laws for se veral reasons. First, if the law had not succeeded in punishing those guilty of huma n rights abuses, CELS hoped that this publication would result in their historical punishment. Second, CELS wished to provide information for all of those who, in one way or another, wished to fight against impunity in Argentina (1988: 7). During the dictatorship, CELS and other human rights organizations published and compiled lists of the victims of government repression, including the disappeared, to document and officialize the human rights a buses under the dictator ship. Since these organizations were working under a governme nt who denied the very detention and disappearance of the victims of this repres sion, the dissemination of these lists of the disappeared was invaluable in attracting the support of in ternational orga nizations and foreign governments. Since the amnesty la ws not only precluded punishment of many officials implicated in these abuses, but also prevented the truth finding element of criminal trials from taking place, this book he lped fill the void left by this climate of impunity. Instead of lists of victims, CELS published lists of repressors, and included information about how each benefited from the different amnesty laws (CELS 1988).
61 In addition to CELS, most of the domestic human rights groups7 working in Argentina under the dictatorshi p, joined in this political project lending a new service to the Argentine public: providing a piece of the truth. They called for the social isolation of the people listed in the book so that even if the la w would not judge them, the Argentine community would. However, the strategy of these hu man rights groups did not end with the moral and social condemna tion of those implicated in human rights abuses. Just as during the dictatorship these domestic groups turned towards the international community for help in pre ssuring the Argentine government to stop its practice of disappearances, dur ing the transition to democracy these groups once again used international strategies in their search for truth and justice. This next section analyzes the strategi es employed by this transnational advocacy network as their goal changed from stopping br utal human rights violations to bringing those implicated in these crimes to jus tice. The network us ed a growing body of international human rights law to legitimate its requests for justice. When the Argentine judiciary did not offer domestic recourse for victims of hu man rights violations, through the help of the advocacy network, they utili zed transnational litiga tion to fight against impunity and pressure the Argentine government to deal with this issue domestically. Fighting Against Impunity: New Legal Strategies for Justice Although the Alfonsn and Menem government s were arguably constrained in their response to the militaryâ€™s past human rights a buses by the tenuous political situation and possible threat of another milita ry uprising, there is a growi ng international trend toward 7 Argentine human rights groups who joined in the message in the prologue about the purpose of this book were all groups that arose duri ng the dictatorship and included th e Abuelas de Plaza de Mayo, APDH, CELS, Familiares, Liga Argentina, Madres de Plaza de Mayo, Movimiento Ecumn ico, Movimiento Judo, and SERPAJ (CELS 1988: 6).
62 recognizing a countryâ€™s affirmative responsibil ities in dealing with atrocities committed by a former regime. Some legal scholars suggest that, where possible in practice, prosecuting those who commit huma n rights violations is the be st way to deal with these past transgressions (see Orentlicher 1991). In many countries, though, political tensions, civil-military tensions, and the instability of the transition process from authoritarian rule, led the nascent democracies to pursue other alternatives. Argentina went farther than most countri es with its aggressive attempts to prosecute military officials, including th e trial of the junta members, for crimes committed during the dictatorship. However, with the passage of the amnesty laws and the pardons issued by Menem, those wishing to pursue justice had to go outside the Argentine legal system to find judicial recourse. Working wi thin the greater context of the transnational advocacy network in place in Argentina during the dictatorship, a smaller subset comprised of lawyers and certain organizations focused on utilizing foreign human rights trials to seek both civil damages and criminal verdicts against military and police officials who benefited from impunity domestically. In an article titled, â€œThe Justice Cascad e: The Evolution and Impact of Foreign Human Rights Trials in Latin America,â€ Ellen Lutz and Ka thryn Sikkink suggest that the increase in the use of foreign human rights tr ial was a part of the efforts of small groups of lawyers they term a transnational justic e network. This network, working within the broader human rights advocacy network, utiliz ed new strategies and emerging norms in international human rights law to bring ci vil and criminal cases against Argentine government officials in foreign countries. These types of trials allowed Argentine
63 citizens who had been denied access to justice in their country to us e the courts in other countries to have access to trials for bot h civil damages and criminal verdicts. U.S. Civil Cases In 1979, lawyers from the Center for Cons titutional Rights in New York City filed a lawsuit on behalf of citizen s of Paraguay against Americo Norbeto Pena-Irala, former Inspector General of Police in Paraguay. The Plaintiffs alleged that Pena-Irala kidnapped and tortured their son, Joelito Filartiga, while still in Pa raguay. This case was brought before the Eastern District of New York court under federal question jurisdiction,8 invoking a rarely used statute, 28 U.S.C. , the Alien Tort Claims Act (ATCA). The ATCA grants the district courts â€œoriginal juri sdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.â€ The district court dismissed the claim for lack of subject matter jurisdiction, and the appeal went to the Second Circuit of the U.S. Court of Appeals. In a landmark decision, Filartiga v. Pena-Irala , the Court held that â€œdeliberate torture perpetrated under color of official authority violates universally accepte d norms of the international law of human rights, regardless of the nati onality of the partiesâ€ ( Filartiga v. Pena-Irala, 630 F.2d 876, 877 (1980)). Therefore, the Court concluded that the AT CA provided federal subject matter jurisdiction. Furthermore, since PenaIrala was an alleged torturer found within the borders of the United St ates, the Court also had pe rsonal jurisdiction over the defendant. This issue is key because it presents a limitation to this type of civil litigation in the United States. In c ontrast to other jurisdiction pol icies implemented by European 8 Federal question jurisdiction is granted by 28 U.S.C. 1331 which grants the district courts â€œoriginal jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.â€
64 courts, in the United States, a court can only a ssert jurisdiction in ATCA cases when the foreign nationals are residing or are physically present in th e United States. The case was subsequently remanded back to the U.S. District Court which awarded the plaintiffs punitive damages since the court wished â€œto make clear the depth of the international revulsion against tortur e and measure the award in accordance with the enormity of the offenseâ€ ( Filartiga v. Pena-Irala , 577 F. Supp. 860, 866 (E.D. NY 1984)). The court determined that the amount of punitive damages should be no less than $5,000,000 to each plaintiff, to reflect both the world communityâ€™s abhorrence of torture and to act as a deterrent ( 1984: 867). Although the Filartiga family was never able to collect the judgment, the Filartiga case established transnational litigation for civil liability as a viable option in the United States. Human rights lawyers now use the ATCA regularly to litigate cases under inte rnational human rights law in U.S. courts (Aceves 2002: 34). Since the Filartiga decision, plaintiffs from numer ous foreign countries, including Argentina, have filed suits alleging violations of international human rights law such as torture, arbitrary detention, forced disapp earance, and other crimes against humanity (2002: 33). Argentine citizens residing in the United States brought this type of civil suit under the ATCA seeking damages from Carlos Guillermo Suarez-Mason, the Commander of Argentinaâ€™s First Army Corps from January 1976 until January 1979 ( Forti v. Suarez-Mason , 672 F. Supp. 1531, 1536 (N.D. Cal. 1987). U.S. civil litigation was a way for victims to go outside the Argen tine judicial system to tell their story in court and have access to a full tr ial, although they did not have access to a criminal trial.
65 Plaintiff Alfredo Forti, along with his moth er and four brothers, was seized in 1977 by the First Army Corps and held at a detenti on center. The five br others were released six days later, but the mother, Nelida Azu cena Sosa de Forti, was never released and remained one of the â€œdisappeared.â€ Th e other plaintiff, Debora Benchoam, was imprisoned for four years but was finally released as a resu lt of domestic and international pressure in 1981 and came to th e United States as a refugee. Benchoamâ€™s brother was abducted the same day but was retu rned to the family the following day after dying from internal bleeding caused by bullet wounds ( Forti 1987: 1537). Plaintiffs alleged acts committed by personnel under Suarez-Masonâ€™s command violated international customary law, and laws of the United States, California, and Argentina. The alleged acts included tortur e, murder, prolonged arbitrary detention, disappearance and summary execution (1987: 1 538). The court evaluated each of the eleven causes of action to determine whethe r they fell under the cate gory of international torts that would be recognizable claims under the ATCA. The court determined that to be violations of customary international law, th e torts would have to be a violation of â€œuniversal, definable, and obligatory intern ational normsâ€ (1987: 1540) . Plaintiffs were ultimately awarded $8 million in damages in 1990 (Aceves 2002: 34). The District Court originally held that there was not a universal consensus over what constituted a disappearance, or what conduct could be defined as included under this term. However, after Plaintiffs moved for the court to reconsider this decision, the District Court held that they had submitted su fficient information to establish a universal consensus over the elements of disappear ance and the international communityâ€™s prohibition of this practice. This case established important precedent by recognizing
66 that there was a â€œuniversal and obligatory inte rnational proscription of the tort of â€˜causing disappearanceâ€™â€ ( Forti v. Suarez-Mason , 694 F. Supp. 707, 711 (N.D. Cal. 1988)). Forti v. Suarez-Mason was one of three separate suits brought on behalf of several Argentine citizens by teams of lawyers worki ng for the Center for Constitutional Rights, Americas Watch, and the American Civil Libe rties Union of Southern California. A judgment was entered against Suarez-Mason in all three cases (Lut z & Sikkink 2001: 9). Beyond the award of monetary damages, this ty pe of litigation serves several functions. Impunity for crimes such as torture and th e arbitrary detention and disappearance of people undermine the rule of law. Punishing these acts is an affirmation of these human rights norms and condemns these acts of violence that may go unpunished in the plaintiffsâ€™ own countries. Additionally, this type of litigation helps create a public record of the crime, the injuries suffered by the vict im, and the perpetrators role in the human rights abuses.9 Furthermore, the victims have the chance to use the courts as a forum to tell their stories, and they finally have access to a full hearing that may be denied in their own countries10 (Aceves 2002: 38). European Criminal Cases In contrast to civil litigation in the United States, Latin American human rights activists in Europe brought criminal charges against Argentine citizens for violations that 9 Even these civil proceedings, as moral or symbolic vict ories, can have limitations. Civil trials in front of juries who may not understand the context in which th e crimes were committed are sometimes reluctant to find the defendants culpable. In a case in West Palm Beach, Florida, after listening to detailed accounts of the violence during El Salvadorâ€™s civil war, a jury found that two El Salvador generals had done all they could to curtail the human rights abuses (Gonzalez 2000). 10 Suarez-Mason was subsequently extradited to Argentin a to stand criminal trial (AI 1989: 106). SuarezMason was then among the military officers pardoned by President Menem in 1988 when he was still awaiting trial for human rights violations, including 39 murder charges (AI 1991: 34). Thus, Menemâ€™s pardons effectively blocked judicial recourse for these victims in Argentine courts.
67 took place in Argentina. Since many citizens of European descent lived in Argentina and other Southern Cone countries, the national courts in Europe we re able to assert jurisdiction over cases involving their nationals. Many Eu ropean courts invoke a passive personality basis for jurisdiction which allows a state to assert criminal jurisdiction no matter where the crime occurred as long as th e victim was one of their nationals (Lutz & Sikkink 2001: 10). In spite of the unwill ingness of Argentina to comply with extradition requests or deal with this issue domestically, by 2000 judici al proceedings or inve stigations had been opened in Italy, Spain and Germany. Additionally, extraditions for various military officials had been submitted in different count ries for Argentine citizens (AI 2001: 33). In 1990, a French court tried Alfredo Astiz for the torture and disappearance of two French nuns. Lawyers that were a part of this transnational justice network had convinced a French court to assert jurisdic tion over this case a nd the court tried and convicted Astiz in absentia . The French court then placed an extradition request with Argentina, but Argentina refused citing that the action was barred by its amnesty laws. Sweden also attempted to extradite Astiz for the murder of Dagmar Hagelin11, a SwedishArgentine girl who disappeared in 1977 (Lutz & Sikkink 2001: 11). In 1996, an Italian judge began investigati ons of the disappearances of more than 70 Italians and Argentines of Italian descent (AI 1997: 75). In 1999, the Italian Minister of Justice authorized criminal proceedings to be initiated against five former military officials for the murder of three Italian ci tizens, Giovanni Pegoraro, Susana Pergoraro, 11 In February of 1988, the Argentine Supreme Court had upheld a 1986 decision, and absolved Astiz in the case of Hagelinâ€™s disappearance, because it concluded the statute of limitations had expired. Subsequently, the law of â€œDue Obedienceâ€ also pr ecluded prosecutio n (AI 1989: 105).
68 and Angela Maria Arieta. This proceeding was initiated as a result of investigations by the Italian judiciary that we re opened in 1983 (AI 2000: 34). In a different case, an Italian court convicted in absentia seven former Argentine military officers for the abduction and murder of seven Italian citi zens, and the kidnapping of one of their children (2000: 34). However, in 1996, the Argentine Appeals Court reopened inves tigations of the disappearance of the French nuns and Hagelin (AI 1997: 75). Thus, these foreign human rights trials not only were symbolically impor tant, they also succeeded in pressuring the Argentine judiciary to reopen i nvestigations, even while such offenses were presumably covered by the amnesty laws. Although the Argentine government had reopened investigations, the crimes Astiz was accused of were covered by the law of Obedencia Debida . Absent repeal of the laws by the Congr ess, or the Supreme Court declaring the laws unconstitutional, Astiz would not face criminal charges in Argentina. However, both Italian and French courts had requested Astizâ€™s extrad ition for the disappearance of their citizens, but in 2001, Arge ntine President Fernando de la Ra declined to extradite Astiz. Human rights groups im mediately criticized Argentinaâ€™s failure to extradite Astiz, and noted that unless Astiz faced immediate tr ial in Argentina, it would be a victory for impunity (HRW 2001). In Spain, beginning in 1999, Spanish judge Ba ltasar Garzn issued an international arrest warrant for 98 military officials, including former junta members, that included charges of genocide, torture and terrorism. However, Menem consistently refused to cooperate, citing that these ma tters had already been dealt with by Argentinaâ€™s judiciary (AI 2000: 34). Spainâ€™s asserti on of jurisdiction in these ma tters went beyond the passive
69 personality theory that would grant jurisdicti on over matters related to Spanish nationals. Garzn invoked the theory of uni versal jurisdiction to try th ese officials of human rights abuses. The theory of universal jurisdiction allows a state to assert juri sdiction over certain offenses that fall generally under the class of â€œinternational crimesâ€ even if the crime was committed in another state and neither the defendant nor the victim are citizens of the forum state (Restatement 3d of the Foreign Re lations Law of the U.S. ). In Spain, victims and their relatives file cases based on its universal jurisdiction law that opens the Spanish courts to victims of massive huma n rights abuses from other countries on the condition that they were unable to gain judi cial recourse in their own countries first (Mndez & Tinajero-Esquivel 2001 : 3). The most famous of these proceedings was the Pinochet case, when the former military dictat or of Chile was arrested in Great Britain based on an arrest warrant issued by Judge Garzn in 1998 (Aceves 2002: 164). After several decisions issued by the British courts , the British government ultimately decided to send Pinochet back to Chile, based on his health concerns (2002: 237). However, the British courts affirmed that the principle of universal jurisdiction could be used for certain large scale violations of human rights norms (2002: 168). The Pinochet precedent set up the possibil ity of a later extr adition case between Mexico and Spain. In 2001, Judge Garzn is sued an extradition request for Ricardo Miguel Cavallo, who served in the Argentine intelligence sector from 1976 to 1979 when he allegedly became responsible for the â€œdisap pearedâ€ and engaged in and ordered acts of torture (Mndez & Tinajero-Esquivel 2001: 2). Cavallo was accused of over 248 disappearances and 128 arbitrary detentions. Of those detentions, 16 of them were
70 pregnant women (CELS 2003). Cavallo was in Mexico at the time of the extradition request, and the Mexican author ities detained Cavallo pendin g his hearing. The Mexican federal court issued its opinion, with severa l important implications, the least of which was the decision to extradite Cavallo to Sp ain (Mndez & Tinajero-Esquivel 2001: 4). The Mexican judge determined that the Ar gentine amnesty laws had no legal effect internationally because they violate princi ples encoded in international human rights treaties. He concluded that the crim es Cavallo was accused of committing were peremptory norms that imposed an affirmative duty to investigate, prosecute and punish. Furthermore, he noted that international law did not pr otect such people from the jurisdiction of the international community si nce the interests of the community and of the victims overshadowed any particul ar national interest (2001: 5). In June of 2003, the Supreme Court of Me xico authorized the extradition of Cavallo, affirming the 2001 decision. This is a landmark case because it represented the first time a person accused of a crime ag ainst humanity from one state would be extradited from a second state to be tried in a third state. Th is case reaffirmed the validity of the principle of universal jurisdiction. Following the de cision, Argentine and Mexican human rights groups began pressuring the Me xican government to comply with this extradition order without allowing political c onsiderations to interfere in this decision (CELS 2003). In June of 2003, Cavallo, wear ing a bulletproof vest and handcuffs, was escorted to a Spanish Air Force plane and was flown to Spain for his extradition pending a criminal trial (CNN 2003). Not only does the Cavallo case repres ent an important landmark in the development of universal jurisdiction, it is also significant becau se of the connection
71 between the domestic and international arenas . Victims and relatives of victims from Argentina filed this suit in Spain, initiating an investigation and cr iminal legal proceeding in another state when denied judicial rec ourse in their own. This case highlights the crucial interaction between Argentine actors and the international community. Also, it shows a growing trend towards recognizing a more expansive theory of criminal jurisdiction, especially in cases were victims had no access to judicial recourse in their own countries. Conclusions about Transnational Litigation These human rights trials that take place in foreign national courts, and encompass both civil and criminal proceedings, have an important impact on the growing trend towards â€œenforcementâ€ of international human rights law. William Aceves, in his article â€œLiberalism and International Legal Schol arship: The Pinochet Case and the Move Toward a Universal System of Transnationa l Law Litigation,â€ proposes that a universal system of transnational litigation would be effective in promoting human rights. He suggests that a universal system would utiliz e an existing network of domestic judicial institutions that apply universal jurisdiction to enforce compliance with international human rights norms. Aceves contends that this system enables both state and nonstate actors to pursue actions, unlike in international tribunals wh ere state actors are the only ones who can generally bring cases (Aceves 2000: 134). While the universal system of transnational law litigation envisioned by Aceves has not yet been realize d, the Argentine case pr ovides a good example of state and non-state actors working in conjunction to bring actions for victims of human rights abuses. In the Argentine case, national courts did not adequa tely provide judicial recourse to these victims, due to the amnesty laws and the subsequent pardons, so citizens had to go
72 outside the country to gain access to foreign co urts. This transnational litigation was not the result of Argentine citizens seeking judici al redress primarily in foreign courts, but was a tool of a transnational justice networ k, working within the tr ansnational advocacy network, to bring another type of pr essure on the Argentine government. Ultimately, I contend that the use of forei gn courts for human rights trials was not sufficient to bring justice and truth for such massive amounts of human rights violations. First, this universal system of liberal de mocracies working in conjunction to enforce international human rights law advanced by A ceves does not yet exist. Many of these criminal trials occurred in absentia , with the verdicts serving more of a symbolic purpose. Unless Argentina decided to extradite those found guilty of these crimes, the verdict would never result in punishment. Furthermore, the civil damages were also mainly symbolic, even though in the United St ates the trials only occurred when the defendant was actually pres ent in the United States. Second, the number of victims of human ri ghts abuses, and the resulting number of implicated perpetrators, was so large that it would be difficult to find adequate judicial recourse since, of the ca ses discussed, only Spain asse rted jurisdiction through the doctrine of universal jurisdicti on. The other countries were ge nerally limited to cases that affected their own foreign nationals. Thes e foreign human rights trials served an important purpose, however, when viewed in the greater context of a transnational advocacy network that was working to pressu re the Argentine government to reopen the possibility of providing judicial recour se in their own na tional courts. In the next chapter, I will analyze how this transnational ju stice network, by using transnational litigation as a tool, succeeded in placing pressure on the Argentine
73 government to revisit former investigations and eventually hold trials for these human rights abuses. Furthermore, I will evalua te the extent of the â€œjustice cascadeâ€ that occurred in Argentina as a result of these trials and other work of the advocacy network, as Argentina internalized international human rights norms. This justice cascade eventually led to the desired â€œboomera ng effectâ€ in August 2003 with Argentina repealing its amnesty laws, the main legal blockage that preven ted domestic judicial recourse.
74 CHAPTER 4 THE BOOMERANG EFFECT OF FOREIGN HUMAN RIGHTS TRIALS: MEASURING THE JUSTICE CASCADE The transnational advocacy network employed a variety of tactics to pressure the Argentine government from outside the domestic sphere to lobby for a change in human rights policy during the dictat orship. This same network continued its work during the transition to democracy to pr ovide information to CONADEP and to the prosecutors in Argentina for the criminal trials that took place in the 1980s. However, the amnesty laws passed during the Alfonsn administration a nd the pardons issued by Menem created a â€œblockageâ€ for this network and the governme nt essentially failed to provide a certain right. In this case, the government bloc ked individuals from obtaining judicial or political recourse domestically fo r these human rights violations. As explored in the last chapter, as a resu lt of this blockage, a transnational justice network operating within the broader framew ork of a transnational advocacy network used foreign human rights trials as an alternat ive to domestic trials in Argentina. As demonstrated, these trials were limited in scope and depended on whether the host country could assert jurisdiction over the defe ndants for crimes committed in Argentina. In this chapter, I contend that these foreign human rights trials were a part of a â€œjustice cascade,â€ a process through which Argentina internalized certai n human rights norms related to international duties to prosecute a nd provide an effective remedy to victims of crimes against humanity. The transnational advocacy network, by using tactics such as
75 foreign human rights trials, eventually were ab le to â€œechoâ€ the demands of justice back to Argentina to change the stat eâ€™s policies or behaviors. The most prominent example of the way in which the work of the advocacy network â€œechoedâ€ back to Argentina occu rred in August 2003 when the Argentine Congress passed Law N. 25.779, overturning th e two amnesty laws passed during the transitional period ( see Appendix C ). This chapter examines how this measure taken by the Argentine Congress reflected a greater patt ern of this internalization of human rights norms that had been occurring in Argentina. Specifically, I conte nd that Argentina had begun to internalize and reflect the fact that the amnesty provisi ons enacted during the transitional period had been declared incons istent with duties unde r international human rights law, such as the duty to provide an effective remedy for the victims of these abuses. Moreover, I argue that this intern alization of hu man rights norms was the result of international and domestic pressures on the Argentine gov ernment by the transnational advocacy network. Internalization of Human Rights Norms: The Role of the Transnational Justice Network In the case of Argentina, the goal of th e transnational advocacy network after the passage of the amnesty laws became more complex. When domestic legislation precluded prosecution or other j udicial recourse, the network had to look to other sources of law to legitimate these demands for justice. In the case of the transnational justice network, arguments about the illegitimacy of Argentinaâ€™s amnesty laws were grounded in a body of international human rights law that could support a duty for a state to provide judicial recourse to victims of human rights abuses. Various i ssues arise from this use of international human rights law to pressure a state to change its own practice. For
76 example, at what point does a state comp ly with internationa l human rights norms because it has internalized these norms and made them a part of the domestic legal system? This section explores how a process of legal internaliza tion is underway in Argentina. According to Harold Hongju Koh, a Professor and Director of the Center for International Human Rights Law at Yale Univ ersity, legal internaliz ation of human rights norms â€œoccurs when an international norm is incorporated into the domestic legal system and becomes domestic law through executive action, legislative action, judicial interpretation, or some co mbination of the threeâ€ (Koh 1998: 642). I contend that Argentinaâ€™s legal system is in the process of internalizing a particul ar human rights norm: the invalidity of domestic amnesty legi slation for crimes against humanity under international law. Through an analysis of recent executive, legislative and judicial actions in Argentina, I will demonstrate how Argentina has internalized this norm, and examine the role of the transnationa l advocacy network in this process. Koh describes this process in four phases: interac tion, interpretation, internalization, and obedience. He hypothesizes that this pro cess of legal internalization begins when transnational actors initiate intera ctions with another actor, such as a state, in a â€œlaw-declaring forum.â€ Then, the global no rm relevant to the particular situation is interpreted in this forum. The ultimate goal of the initiating actor is not just to coerce the other party. In fact, it may not even be possi ble to force compliance of the state to these human rights norms. Instead, the initiating actor is attempting to pressure the other party to follow the international norm and ultimately in ternalize it as a part of its domestic legal norms (1998: 644).
77 Using Accountability Politics: Transnationa l Interactions and Interpretations of Human Rights Norms In the last chapter, I examined the tran snational justice networkâ€™s use of foreign human rights trials as a strategy to go out side the Argentine legal system when the amnesty laws presented an impediment to domestic judicial rec ourse. These foreign human rights trials are examples of this proce ss of interaction between actors in legal fora and the subsequent interpretation of Argentinaâ€™ s amnesty laws by forei gn judicial bodies. While these foreign human rights trials, due to limitations in scope and in jurisdiction over potential defendants, were not an adequate substitute for domestic trials, they played an important role in this process of interpre ting the validity of Arge ntinaâ€™s amnesty laws. Furthermore, by grounding the interpretation of Argentinaâ€™s amnesty laws in a body of international human rights law, the transn ational justice network was able to use accountability politics to pressure the Argen tine government to comply with its human rights commitments, such as its treaty obligations. Filartiga-style lawsuits in the United States represent a type of litigation that has a deeper meaning for the interpretation of human rights norms than it does in terms of actual outcomes from the cases themselves. Of ten the monetary awards are symbolic, as the plaintiffs most likely will never collect fr om the defendants. However, legal scholars have interpreted this type of litigation as part of a broader strategy to enforce international human rights norms. This type of litigation represents these complex interactions that serve to interpret and rein force international huma n rights law (Stephens 2002: 35). The Cavallo case is another good example of this process of interaction and interpretation in a law-declaring forum. When Spain requested Ricardo Miguel Cavalloâ€™s
78 extradition from Mexico for crimes committed in Argentina under the dictatorship, part of the Mexican Supreme Courtâ€™s analysis of whether to extradite Cavallo to Spain involved the validity of Argentinaâ€™s amnesty le gislation. The Court was careful to note that amnesty legislation was not invalid in all cases, because sometimes it reflected a societyâ€™s decision to deal with certain cr imes by pardoning them or deciding not to prosecute. In that respect, such amnesty legi slation would represent a â€œjudgmentâ€ of that issue, and to subject a defenda nt to prosecution in other coun tries would infringe on that countryâ€™s sovereignty ( Extradicin Amparo 2002: 674). The Court examined the various internationa l treaties that might place an obligation on countries to prosecute these crimes, and d eclared that Argentinaâ€™s amnesty laws were invalid under international law. Moreover, the Court held that since Argentina had provided a climate of impunity for those who had violated the international norms in these human rights treaties, other parties to th e treaties, such as Spain and Mexico, had an obligation not to let these crimes go unpunished if they were able to assert jurisdiction over the defendants. For these reasons, th e Court declared that all states had the responsibility to punish these offenses and th e domestic amnesty laws in Argentina could not be used as a defense to shield pros pective defendants from such transnational litigation (2002: 970). The Cavallo case was initiated in Spain as a part of other pending cases against Argentine and Chilean military officials for crimes against humanity. By requesting Cavalloâ€™s extradition from Mexico, Judge Garz n, as part of the transnational justice network, was initiating interactions in Mexican courts about the va lidity of Argentinaâ€™s amnesty laws. Two Mexican courts then d ecided it was proper to extradite Cavallo, and
79 concluded that Argentinaâ€™s amnesty laws we re invalid under intern ational law. This interpretation of the invalidity of Argentin aâ€™s amnesty laws was highly publicized and represented the first of the military officials extradited to Spain from any Latin American country under the principle of univers al jurisdiction (CNN 2003). In addition to foreign human rights trials , intergovernmental organizations also provided a forum for interpretation of the validity of Argentinaâ€™s amnesty laws under international law. By late 1987, the Inter-American Commi ssion on Human Rights (IACHR) began receiving complaints from citizens, alleging that the Argentine government had violated the American Convention on Human Rights (American Convention) by passing the two amnesty laws and a presidential decree1 that precluded prosecution of officials implicated in huma n rights abuses. Some petitioners filed individual complaints with the IACHR while other petitions were filed by institutions such as the Servicio Paz y Justicia, an Ar gentine human rights orga nization, which filed a case on behalf of 90 people. The IACHR decided that the f acts of the individual petiti ons were not in dispute; the only issue was whether the amnesty laws passed by the Argentine Congress and the presidential pardon were incompatible with the American Convention. Specifically, the petitioners contended that, among other allegations, the pa ssage of the amnesty laws constituted a violation of their right to judicial protection (art icle 25) and to a fair trial (article 8) guaranteed by the American C onvention. For this r eason, the IACHR joined 1 The petitions referred to the Punto Final (Law N. 23.392) and Obedencia Debida (Law N. 23.521) amnesty legislation. Presidential Decree N. 1002, issued on October 7, 1989, pardoned all persons who had been indicted for human rights violations, but had not benefited from the amnesty laws.
80 the petitions to examine whether the amne sty provisions violated Argentinaâ€™s duties under the relevant articles of the American Convention. The Argentine government contended that th e alleged violations occurred in the 1970s, before Argentina had ratified the American Convention (IACHR 1992: 3). Argentina ratified the Amer ican Convention on September 5, 1984, at which point the Convention entered into force. Therefore, Argentina argued that international law supports the principle that treaties sh ould not be applied retroactively2. However, the petitioners were not asking the IACHR to ev aluate their complain ts of human rights violations committed under the dictatorship. In stead, the petitioners were challenging the validity of the amnesty laws which were passe d after the treaty entered into force. For this reason, the IACHR declared that the petitions were admi ssible and did not violate the non-retroactivity principle of tr eaty obligations (1992: 4). In Report N. 28/92, the IACHR declared that Argentinaâ€™s amnesty provisions violated the petitionersâ€™ right to a fair trial (article 8), right to judicial protection (article 25), and the obligation of the state to guarantee the exercise of the rights listed in the American Convention (article 1). Furthe rmore, the IACHR found that the amnesty provisions were incompatible with Article XVIII of the American Declaration of the Rights and Duties of Man3 which guarantees the right to a free trial. The IACHR recognized the â€œexemplar y measureâ€ taken by the Argentine government to investigate and documen t these disappearances by establishing 2 Argentina cited article 28 of the Vienna Conven tion on the Law of Treaties which reads, â€œUnless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any or fact which took place or any situati on which ceased to exist before the date of the entry into force of the treaty with respect to that partyâ€ (Vienna Convention 1969: article 28). 3 The American Declaration of the Rights and Duties of Man was approved in 1948, but is not a binding treaty.
81 CONADEP and publishing the repo rt of the truth commission â€™s findings. Furthermore, the IACHR recognized the historic preceden t set by the Argentine government by holding criminal trials and convicting high ranking gove rnment officials of human rights abuses committed during the dictatorship. Howe ver, the IACHR noted that the legal consequence of the amnesty laws and the Decr ee was to deny the victims of these human rights abuses â€œtheir right to obt ain a judicial investigation in a court of criminal law to determine those responsible for the crimes committed and punish them accordinglyâ€ (IACHR 1992: 8). The IACHR recommended, among other measur es, that the Argentine government â€œadopt the measures necessary to clarify the facts and identify those responsible for the human rights violations that occurred during the past military dictatorshipâ€ (1992: 9). Although the IACHR did not actually specify what types of measures would be necessary to bring Argentina into compliance with th e American Convention, this opinion issued by the human rights body was crucial in the fi ght against impunity by the transnational advocacy network. In addition to the IACH R, the Inter-American Court of Human Rights (IAC) also interpreted domestic amne sty laws as contrary to the American Convention on Human Rights. In the 2001 Barrios Altos case before the IAC, a case referred to the Court by the IACHR, Peruvian citizens challenged domestic amnesty laws passed in Peru as being in violation of their rights u nder the American Convention. The IAC, in an important interpretation of law, held that amnesty laws that preclude investig ation and identification of perpetrators are incompatible with th e American Convention. The IAC would not
82 admit the amnesty laws as a valid defense for Peruâ€™s non-compliance with duties under the American Convention and stated: This Court considers that all amnesty provi sions, provisions on prescription and the establishment of measures designed to el iminate responsibility are inadmissible, because they are intended to prevent th e investigation and punishment of those responsible for serious huma n rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law. (Barrios Altos 2001: 420) Just as in the Barrios Altos case, the torture and disa ppearance of thousands of people at the hands of Argentinaâ€™s military re gime fit into this subset of non-derogable human rights under international law. Many le gal scholars claim that since these rights cannot be derogated from, the state also has a duty to afford judicial protection for victims of these human rights abuses. This argument is based on explicit obligations listed in international and regional treaties as well as an implied duty under customary international law (Henrard 1999: 615). The importance of international human righ ts organization during these interactions with the Argentine state in a law-declaring fo rum is seen in the IACâ€™s widespread use of amicus curiae briefs.4 In fact, the IAC has one of th e most widespread acceptance of amicus briefs of all international human ri ghts courts (Shelton 1994: 639). International human rights organizations that regularly submit amicus briefs before the Court include Amnesty International, Americaâ€™s Watch, the Lawyerâ€™s Committee for International Human Rights, and the Internati onal Commission of Jurists. In addition to filing briefs, the IAC has also recently allowed these in ternational NGOs to participate in oral 4 Amicus curiae consists of third-party participants in a judicial proceeding. NGO s that file these briefs with the court can suggest issues of fact or law with in that organizationâ€™s knowledge, and this process is less costly and involved than actually intervening as a party in a case (Shelton 1994: 611).
83 proceedings (1994: 640). This process allows these interna tional NGOs to present their interpretation of the human ri ghts practices in question and challenge the state parties to remain accountable to thei r obligations under the Am erican Convention. By engaging in a process of interactions between aggrie ved citizens and the state of Argentina in a forum that interprets c ountryâ€™s obligations under the American Convention of Human Rights, the advocacy network invoked an important type of pressure: accountability politics. Since accountability politics relies on holding governments accountable to their public statements on human rights positions,5 Keck and Sikkink note that â€œnetworks can use these pos itions, and their command of information, to expose the distance between discourse and practiceâ€ (Keck & Sikkink 1998: 24). Since Argentina was a party to the Ameri can Convention, opinions by international bodies such as the IACHR that exposed th e distance between the duties Argentina had committed to by signing the treaty and Argentinaâ€™s actual practice served to pressure the government to make its practice more in line with its discourse. In addition to the American Convention, th e Convention Against Torture is another source of international law that creates a duty to provide judicial recour se to victims. The Convention Against Torture define s â€œtortureâ€ in art. 1(1) as â€œan act by which severe pain or suffering, whether physical or mental, is intentionally inflicte d on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an actwith the consen t or acquiescence of a public official or other person acting in an official capac ity.â€ Argentinaâ€™s Truth Commission, CONADEP, documented a national network of 340 detent ion centers where the vast ma jority of the disappeared 5 For a list of Argentinaâ€™s treaty obligations relevant to human rights abuses committed under the military dictatorship, see Appendix D.
84 were taken and held, tortured, then often killed. Many victims de scribed torture that included a variety of methods such as electric shocks with cattle prods, beatings, rape, hangings, mock executions, and burnings (Brysk 1994: 317). The Convention provides in Article 2(2) that no exceptional circumstance justifies torture and in Article 2(3) that due obed ience may not be invoked as a defense. Argentinaâ€™s law of Obedencia Debida , passed after Argentina ratified the Convention against Torture, would be in direct conflict with this prov ision since it allows junior officers to escape punishment based on the defens e that they were taking orders from a superior officer. Furthermor e, article 7(1) requires that the state, under whose jurisdiction the person is alleged to have co mmitted the crime, to either extradite the person or â€œsubmit the case to its component authorities for the purpos e of prosecution.â€ This explicit duty to prosecute torturers unde r the Convention would make countries that pass or apply amnesty laws to be in violati on of the treaty (Orentlicher 1991: 2568). Another relevant treaty obligation Argentin a has committed itself to is the ICCPR, which protects certain civil and political free doms of individuals. These rights include a prohibition against arbitrarily depriving a human being of lif e, the right to liberty and security of person, and freedom from torture and cruel, inhuman or degrading punishment (See generally ICCPR articles 6, 7, 9). While the ICCPR does not provide an explicit duty for a judicial remedy for violations of the treaty, article 2( 3)(a) of the ICCPR imparts a duty upon each state party to the convention â€œto ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in official capacity.â€ This language is not as explicit as the duties to provide a judicial remedy
85 listed in article 7(1) of the Convention Agai nst Torture, but blanket impunity for such non-derogable obligations such as the prohibi tion against arbitraril y depriving someone of life (article 6) and the prohi bition against torture (article 7) contradicts the spirit of the treaty. Article 28 of the ICCPR established the Human Rights Committee (HRC), an interpretative body of the treaty. The HRC is comprised of nationals of the States party to the ICCPR with â€œrecognized competence in th e field of human rightsâ€ (ICCPR art. 28). The HRC, in a report issued in 1995, comme nted on the amnesty laws in light of Argentinaâ€™s treaty obligations under the ICCPR. The HRC sp ecifically noted that the two amnesty laws denied victims an â€œeffective re medyâ€ in violations of articles 2(2), 2(3), and 9(5) of the ICCPR. Furthermore, th e HRC commented that the amnesty measures and pardons impeded investigations and had b een applied even to crimes against gross human rights violations, creating a cl imate of impunity (HRC 1995). Comments from international bodies such as the HRC added to this pressure for Argentina to bring its human rights practices mo re in line with its discourse. By exposing this distance between Argentinaâ€™s treaty obligations and actual practice of creating a climate of impunity for human rights abus ers, these IGOs became a part of the transnational advocacy networkâ€™s strategy to pressure Argentina to repeal the amnesty laws. Additionally, statements by internati onal bodies such as the IACHR or the HRC that Argentinaâ€™s amnesty laws were in conf lict with its obligati ons under international law created a source of law domestic NGOs in Argentina could use in cases challenging the validity of these amnesty measures.
86 In amicus briefs filed by CELS before the Argentine courts, this domestic NGO consistently referred to Argentinaâ€™s treaty obl igations and duties under international law. The institution of amicus briefs as a part of the Argentine legal system is still evolving, but this practice has become more common. As a result, organizations such as CELS have a way to participate in cases they we re not directly involved in, and they can comment on the international legal issues, or que stions of fact that they wish to present (CELS 2004). In addition to presenting amicus briefs before domestic courts and international courts, NGOs from Argentina also have pr esented information before another lawdeclaring forum: the legislature. In 1996, a group of Argentine NGOs presented a report before the European Parliament on Impunity in Argentina. The NGOs who authored this report were the Abuelas , the Madres , CELS, SERPAJ, the Familiares , and the Liga . In this report, the NGOs called on the Argentine g overnment to repeal the amnesty laws and the removal of those implicated in human ri ghts abuses from public posts. Furthermore, the NGOs called on the international community to pressure Argentin a to comply with the resolutions from the HRC in the 1995 Comment on Argentina and from the IACHR in Report N. 28/92. By placing their demands wi thin the greater context of international human rights law, these domestic NGOs gained more credibility to enlist the help of other states in leveraging pressure against Argentina ( Abuelas de Plaza de Mayo et al 1996). In this way, these domestic NGOs went out side the state to seek help to pressure the Argentine government in the hopes that this message that the international community would not condone impunity would eventually echo back.
87 The Process of Internalization and Obedience of Human Rights Norms Once Argentinaâ€™s amnesty provisions that impeded investigation and prosecution were interpreted by the international community as being in violation of international human rights law, the questi on became whether Argentin a would internalize these interpretations into its own domestic struct ures. The internalization of human rights norms can occur in the political, social and legal arenas (see generally Koh 1998: 642). In the case of Argentina, human right s norms are undergoing this process of internalization in both the political and legal arenas.6 When President Nestor Kirchner took office May 25, 2003, he promised to comply with campaign promises that focused on human rights and rooting out corruption in Argentina (EIU 2003). Kirchner was briefly imprisoned under the military dictat orship, and later became the governor of Patagonia for 12 years. Kirchne r, a member of the Peronist party, won the presidential elections with barely 22% of the vote after former president Menem pulled out of the race when polling showed he would lose the ra ce (BBC 2004). Kirchner almost immediately began work on his mandate of dismantling th e climate of impunit y, and in strategic moves, over the next couple of months, Kirchner focused on removing barriers to redressing human rights abuses suffered under the dictatorship (Jeter 2003: A22). Additionally, Argentina has al so undergone a process of legal internalization, as this international norm related to the invalidity of the amnesty laws has become a part of domestic law through a combination of executiv e action, legislative ac tion, and judicial interpretation. One of the mo st important events that laid the groundwork for Argentinaâ€™s 6 Koh describes political internalization as the process through which â€œ political elites accept an international norm and advocate its adoption as a matter of government policy.â€ In contrast, legal internalization â€œoccurs when an international norm is incorporated into the domestic legal structureâ€ (Koh 1998: 642).
88 internalization of interna tional human rights norms generally occurred in 1994 when Argentina adopted a new Constitution. In the Constitution of 1994, treaties in general superseded the authority of Argentinaâ€™s nationa l laws. Additionally, certain treaties such as the American Convention, the Convention ag ainst Torture, and the ICCPR were given the same authority as the Constitution of Argentina ( see Appendix D ). Therefore, these international human rights norms had actually be come a part of Argentine constitutional law (Argentine Constitution 1994: art.75 (22)). Domestic NGOs used international contact s to pressure the government from the outside, employing a variety of methods dependi ng on the context, to eventually â€œechoâ€ these demands back to the country to change the stateâ€™s policies or behavior (Keck & Sikkink 1998: 12-13). In the case of Argentina, there were still domestic challenges to the impunity enjoyed by human rights officials, such as cases file d challenging the lawâ€™s constitutionality and marches by the Mother s of the Plaza del Mayo that continued in protest. However, due to the amnesty laws , absent repeal by th e Congress, political actors within Argentina had no judicial recourse to remedy the perceived violation. With the new prominence of international law in the Argentine Constitution, domestic NGOs in Argentina were able to argue not only that the amnesty laws were invalid under international law, but also that they were invalid under the Constitution. Legal internalization of re lated international human ri ghts norms goes beyond mere repeal of the amnesty laws. It is a process that includes many more indicators that have interacted over a long period of time. This ne xt section explores the depth of this â€œjustice cascadeâ€ as the boomerang effect of the in ternational communityâ€™s condemnation of
89 impunity for human rights violations echoed back into the domestic legal arena in Argentina. The Boomerang Effect: Argentinaâ€™s Justice Cascade This justice cascade underway in Argentina t oday is the result of the efforts of a transnational justice network that brought cases in foreign countries, international courts, and international commissions. This transnational justice network, working within the broader context of a transnational advocacy network in place during the dictatorship and Argentinaâ€™s subsequent transition to democr acy, is a part of a global trend towards greater accountability for human rights violatio ns. Lutz and Sikkink term this trend an â€œinternational norms cascade,â€ which are collect ions of â€œnorm-affirming events.â€ They distinguish the discursive normaffirming events from a change in actual practice in order to determine the effect norms have on beha vioral changes. By analyzing Argentinaâ€™s justice cascade underway today, I seek to ex amine the effect of these international pressures as Argentina internalized human ri ghts norms, leading ultimately to a change in human rights practices by the state. Although the amount of human rights tr ials conducted by the Argentine government during the transitional period wa s unprecedented, after the amnesty laws were passed and the pardons issued, the bla nket impunity stopped a nymore trials from proceeding. As demonstrated earlier, however , the international community through both national and international courts declared that the amnesty laws violate Argentinaâ€™s obligations under intern ational human rights law. Ev en though various investigations were initiated on the national level, the amnesty laws blocked the full investigation or trial of the human rights abuses in question.
90 The transnational advocacy network had been placing international pressure on Argentina to revisit this issue of impunity for human rights violators since the amnesty laws and pardons were issued at the end of the 1980s. It was not until 2001, however, that a domestic court in Argentina took a fi rst step towards the nullification of these amnesty laws. On March 6, 2001, a Federal judg e, Gabriel Cavallo, declared that these laws were unconstitutional as applied to the case investigating the arbitrary detention and torture of Jos Poblete and Gerturdis Hlaczic de Poblete. Judge Cavallo concluded that since these crimes fit into the subset of human rights abuses known as crimes against humanity, it was not possible to apply an amnesty law to preclude investigation or prosecution of these abuses. Furthermore, he sp ecifically noted that the principle of â€œDue Obedienceâ€ could not be invoked as a defense under international law for these crimes and therefore the amnesty law of Obedencia Debida could not be applied (CELS 2002b: 4). On October 1, 2001, another Federal judge, Cl audio Bonado, also declared the two amnesty laws to be unconstitutional. Judge B onado had been hearing an investigation of the forced disappearance of Conrado H. Gm ez. In November of that same year, the Appeals Court unanimously confirmed both J udge Cavallo and Bonadoâ€™s decisions. In addition to hearing the arguments of the J udgeâ€™s decisions, consid ered cases of first instance, since it was the first time a judge had ruled on the issue, the Appeals Court looked at the arguments from the Barrios Altos case from the IAC (2002b: 4). Thus, even though this process of declaring laws unconstitutional was finally occurring in the domestic courts, the judiciary in Argentina looked to international court decisions as precedent and as valid interpretations of international human rights law.
91 Ultimately, the decision of whether to uphold these decisions rested in the hands of the Supreme Court, a highly contentious a nd politicized body. Th e Supreme Court had generally declined to hear thes e cases or rule on the constituti onality of the amnesty laws. Meanwhile, there were reports of secret m eetings between the Commander in Chief of the Army, General Ricardo Brinzoni, and S upreme Court Justices (2002b: 5). Other members of the armed forces became restless at the possibility of the Court declaring the amnesty laws unconstitutional. The Minister of Defense, Horacio Juanarena, commented that the armed forces lived in â€œâ€˜un escenar io de incertidumbreâ€™â€ (an environment of uncertainty) for events that ha d occurred 20 years previously (2002b: 7). Even with the Supreme Courtâ€™s reluctance to rule on thes e cases, this issue was not going away. The European criminal trials provided a nother form of pressure on the Argentine government. With a government decree in place that prevented Argentina from complying with extradition requests for offici als accused of human rights violations in other countries, the foreign human rights tria ls were unable to reach the defendants in these cases. The extradition of Cavallo from Mexico to Spain provided an ominous warning that military officials may be safe from extradition in Argentina, but traveling and living abroad would subject them to civil an d criminal proceedings in other countries. In July 2003, in response to extradition requests from Spain, a federal judge in Buenos Aires ordered the deten tion of 46 former government officials. One day after this action, Kirchner revoked the government decree that prevented Argentine officials from being extradited to other count ries on charges of human rights abuses (Rohter 2003b). This move by Kirchner placed the reach of fo reign human rights trials squarely in the
92 midst of this debate over the validity of impunity for human rights violations in Argentina. Polls show that many of Argentines s upport Kirchnerâ€™s position, but the majority would prefer to see the violat ors prosecuted in Argentina, rather than extradited to other countries that have filed claims, including Spain, France, Italy, Germany and Sweden. Especially pertinent are concerns that if Argentina does not d eal with this issue domestically, it would seem as if the j udiciary and democratic system were not functioning and that Argentina was incapable of handling this issue its elf (Rohter 2003a). This combination of international and domestic pressures laid the framework for a political actor like Kirchner to enact sweeping reforms. By couching his human rights campaign in a crusade against corruption, a problem many blame for the recent economic crisis, the po ssibility to achieve justice appears more tangible than ever. While court challenges to the amnesty laws had begun to pick up some victories in the last few years, the election of Kirchner was a key moment in the fight against impunity. In Kirchnerâ€™s inaugur ation address, he promised to fight the corruption that had plagued Argentinaâ€™ s formula for democracy and stated: Governance is not and cannot be a synony m of impunity. Governance is not and cannot be a synonym of covert agreem ents, the political maneuvering of institutions, or spurious pacts behind society's ba ck Responsible changes, institutional quality, strengthening of the ro les played by institutions in adherence to the constitution and laws, and powerful struggle against impunity and corruption, should not only rule the acts of the admini stration I will initiate, but the Republic's entire institutional and so cial life. (BBC Worldwide Monitoring 2003) His policies reflect a political internal ization of human rights norms, paving the way for a quicker legal internalization of the necessity to provide an effective remedy to victims, even including crim inal trials for human rights abuses. Even though the beginnings of a justice cascade were in plac e before Kirchner took power, his drive to
93 solve Argentinaâ€™s social and economic wo es by rooting out corruption led to his determination to pressure the judicial and le gislative branches to revisit the issue of impunity. By restructuring the military, a nd removing the ban on extraditing military officials for trial in other countries, Kirchnerâ€™s own political agenda aided this legal internalization of hu man rights norms. It was difficult to imagine that criminal trials could be initiated against military officials accused of human rights abuses since many still held official positions. When military officials who were junior officers during the dictatorship, absolved of wrongdoing by the amnesty laws under the theo ry of due obedience they owed senior officers, became eligible for promotions, the domestic NGOs mobilized to protest. In 2000, CELS protested the promotion of Julio Cesar Binotti and Raf ael Mariano Braga, both accused of human rights violations under the dictatorship. Af ter this protest, Bragaâ€™s promotion was set aside. In Binottiâ€™s case, CELS presented its case in front of the Senate throughout sessions in 2001 and 2002 (CELS 2002a). Finally, the Senate voted against his promotion with 26 voting ag ainst the promotion, 20 voting in favor, and 8 abstentions (Conti 2002). Although many of these officials still we re serving active duty, it was clear the human rights issue was not going away even though nearly twenty years had passed since the violations were committed. The possibili ty of revisiting the issue of impunity in Argentina without exacerbating civil-military tensions seemed tenuous with military officials who had escaped punishment still serv ing in active duty. Perhaps this explains why, the day after Kirchnerâ€™s inauguration on May 25, he retired nearly 75% of the countryâ€™s highest ranking military officers. This was a move designed to purge the
94 armed forces of those implicated in human ri ghts violations under the dictatorship (Ballve 2003). On May 28, Kirchner replaced the militaryâ€™s top three commanders and forced the former commanders into retirement. The Defense Minister, Jose Pampuro, called this the most comprehensive restructuring of the military since it returned power to civilian control in 1983 (Jeter 2003). In addition, Kirchner called for the impeach ment of Supreme Court justices in June, both as a way to fight corruption in a traditionally corrupt institution and as a way of pressuring the Court to overturn the amne sty laws (Ballve 2003). This is significant because it came two days after a group of form er political prisoners under the dictatorship demonstrated in front of the Supreme C ourt. The group, blindfolded and bound, were protesting outside the building as the Court wa s considering appeals from former military officials and police officers who had been i ndicted for abuses. Typically, they would have been covered under the amnesty law, but the lower courts had ruled the laws unconstitutional and allowed the cases to pr oceed, pending appeal to the Supreme Court (EFE News Service 2003). This particular incident demonstrates the various ways the advocacy network interacts and pressures the government. While these international pressures have created legitimacy and political space for Kirchner to employ a sweeping program of reforms, especially related to human ri ghts policy, a demonstration of political prisoners provides a symbolic and graphic representation of what has become a political and legal debate. Ultimately, though, it is about something more than reestablishing the rule of law and ridding the country of corrupt in stitutions. At the core are those who survived the abuses and deserve justice not just because interna tional law dictates they should, or even
95 because the President has decide d it is politically feasible, but because they demand it for themselves, for friends and for family memb ers who suffered and died at the hands of people who have long enjoyed impunity under the law. On August 21, 2003, just three months after Kirchner took office, the Argentine Congress passed Law N. 25.779 which nullified the amnesty laws passed by the Congress at the end of the 1980s ( see Appendix C ). Figure 2 depicts ho w this transnational advocacy network succeeded in this desi red â€œboomerang effectâ€ by pressuring the Argentine government to remove domestic barriers to prosecution.
96 Figure 2. The Boomerang Effect in Argentina: The Campaign Against Impunity (Adapted from the Boomerang Pattern developed by Keck & Sikkink 1998: 13).
97 This measure by the Argentine Congress was the result of the complex interactions between the transnational actors who utilized tools such as transnational litigation to pressure the Argentine government to revis it this issue. Additionally, the Argentine Congress repealed the law amidst pressure from Kirchner, indicat ing his eagerness to sign the law and begin trying those accused of human right s violations in domestic courts. Human rights groups estimated that over 1,000 people could possibly stand trial, causing concern among the military (Rohter 2003a). This preference to deal with the prosecutions domestically highlights the powerful effect that the international legal pressure s can have on a country that had no previous judicial recourse for victims. By engaging in transna tional advocacy, and filing claims in other countries and with human rights co mmissions, the message â€œechoedâ€ back to Argentina was clear. If, by virtue of the amnesty laws, human rights abusers were not brought to justice, Argentines would not forg et, but neither would the global community. In September 2003, the Argentine Congress ordered a reopening of investigations against military officials implicated in hu man rights abuses (Agence France Presse 2003a). While the ultimate decision of the issu e of impunity will lie in the hands of the Supreme Court, this marks an extraordinar y development in the fight to prosecute military officials for human rights abuses. In December 2003, Federal Judge Rodolfo Canicoba Corral declared Law N. 25.779 was c onstitutional, but the final decision on this issue will be made by the Supreme Court. The legislature in Arge ntina rarely repeals legislation, but Judge Canicoba Corral noted that there was legal precedent for this nullification of the amnesty laws. During the transition to democracy, the legislature passed a law nullifying the self-amnesty law passed by the military government. The
98 Supreme Court subsequently upheld the law th at repealed the self-amnesty measures imposed by the military government (Agence France Presse 2003a). High-profile cases such as the many extr adition requests for Alfredo Astiz, a military official who represented the height of repression and human atrocities committed under the dictatorship, helped pressure th e Argentine government to reconsider the amnesty laws preventing domestic prosecution (2003a). When it became clear that Astiz would have to either be extradited or tried in Argentina, many preferred that the issue be dealt with domestically. In this way, these extradition requests served as a type of moral leverage. In order to prove Argentina had the capability to deal with this issue in its own judicial system, it was necessary to remove barriers to prosecution. Amidst these legal proceedings, domestic NGOs gathered in the Plaza de Mayo for the â€œMarcha de Resistencia,â€ at the e nd of 2003, to demand punishment to those responsible for human rights atro cities. This is an annual ma rch that has occurred every year since 1980. The major domestic NGOs that worked within Argentinaâ€™s transnational advocacy network since the late 1970s were involved in the march and included the Madres, the Abuelas, los Fam iliares, SERPAJ, Movimiento Ecumnico, Liga Argentina and CELS. The main theme of the march read, â€œA 20 aos sin dictaduras militares, construyamos juntos una verdadera democracia, sin hambre y sin impunidadâ€ (After 20 years without military rule, together we erect a true democracy, without hunger and without impunity) (Agence France Presse 2003c). This fight against impunity in Argentin a is not over, but as Argentina has undergone this justice cascade, internationa l discourse and rhetor ic about human rights has translated into a change in practice. After the Argentine Congress nullified the
99 amnesty laws, in March 2004, a Federal Court se ntenced Miguel Etchecolatz, ex-director of intelligence for the Buenos Aires police, and Jorge Bergs, a former doctor, in the kidnapping and concealment of the identity of Carmen Sanz. Sanzâ€™s mother was disappeared by the dictatorshi p, and Berges falsified her identity on a birth certificate when she was born in a clandestine detention ce nter. Both were sentenced to seven years in prison (Sagasti 2004). Alt hough this was less than the prosecutors and lawyers from ADPH had asked for, this criminal sentence ha d both punitive and symbolic aspects. It represented the erosion of impunity that military and police officials implicated in human rights abuses had enjoyed for near ly 20 years. Ultimat ely, this proved that human rights norms were not just a part of pol itical rhetoric. They had the capability to be transformative. As the tr ansnational advocacy network utili zed a variety of strategies to pressure the Argentine government to revis it this issue, the cour ts and the legislature began to look to international human ri ghts law as a legitim ate source to support overturning the amnesty laws. This case repr esents more than inte rnalization of human rights norms in the legal system; it ultimatel y represents the transformation of state practice through the us e of international human rights law.
100 CHAPTER 5 CONCLUSIONS After years of legal scholars and human rights activists pr otesting that the failure to prosecute officials in Latin America for disappe arances, torture, and ex trajudicial killings represent a violation of human rights law, Argentina has removed the legal barriers for justice by voiding its amnesty laws. With the approval of the Supreme Court, prosecutions could move forward in Argen tina and provide an effective remedy for victims of human rights atrocities co mmitted during the dictatorship. Although Argentina would be finally able to comply with its duties under international law by prosecuting these officials, this reopening of old wounds could exacerbate civil-military tensions, and serve as a divisi ve tool for a country that ne eds to unite and focus on other serious problems, such as recuperating from a recent economic crisis. Additionally, large numbers of prosecutions could flood the judiciary and force ma ny to relive a painful past for an indefinite period of time without certain ty of the repercussions trials could have on the country. In spite of all of the uncertainties surrounding the re newed prospect of finding justice for the victims of Ar gentinaâ€™s Dirty War, this act by the Arge ntine Congress shows that these old wounds do not go away by themselves and a society must find a way to achieve justice for the thousands of â€œd isappeared.â€ Recent events in Argentina demonstrate that transnationa l advocacy networks that were so important lobbying for change during the dictatorship, can also play a critical role in providing international attention and pressure in the fight against impunity. While there is ample evidence of the
101 continued pressures put on the nascent demo cracy by the advocacy network during the transitional period (including pressures for tr uth, the trials of the junta members, extraditions of key official s and restitutions of missing children to their biological families), the work of these human rights organizations continued with the same goals: truth, justice and reconcilia tion. The human rights networ k in Argentina established under the dictatorship paved the way for great er international atte ntion to human rights violations, one that continues today with in tergovernmental organizations such as the U.N. monitoring the situation of the â€œdisappearedâ€ and esta blishing human rights treaties to place an affirmative duty to prosecute upon individual states. While Argentinaâ€™s unique political and hist orical circumstances paved the way for more expansive human rights trials during th e democracy, Argentina still suffered from similar civil-military tensions that plagued other Latin American countries. After the Alfonsn administration and Menem made con cessions to the military in the form of amnesty laws and pardons, the transnationa l advocacy network again faced a blockage between its demands for justice and the stateâ€™ s legal climate of im punity. While domestic NGOs continued to present legal challenge s and symbolic protests domestically, a transnational justice network began using tran snational litigation as a strategy to bring military officials to trial in foreign countries. These trials ultimately were limited in terms of their ability to issue a punishment for criminal proceedings or assert jurisdic tion over potential defendants and served more as a symbolic representation of the global communityâ€™s stance against impunity. As national tribunals, internationa l courts, and intergovernmental organizations declared Argentinaâ€™s amnesty laws invalid under in ternational law, this message began to
102 boomerang back to Argenina. As demonstrated in the last chapter, this transnational justice network, working within the greater advocacy networ k that was lobbying for truth and justice, succeeded in placing internationa l pressure on the Argentine government. As extradition requests from other countries be gan mounting, it became clear that Argentina would have to deal with this issue domes tically because the in ternational community would not forget. Domestic courts in Ar gentina began declaring the amnesty laws unconstitutional for certain crimes in 2000, but this â€œechoing backâ€ of human rights norms to the judicial system in Argentina was a slow process. The election of President Nstor Kirchner in 2003 added an important ally in the fight against impunity. Kirchner had r un for office on a human rights platform, promising to root out corrupti on in Argentinaâ€™s democracy. By equating the rule of law and corruption with Argentinaâ€™s climate of impunity for perpetrators of human rights atrocities, Kirchner began restructuring the military, and paving the way for the repeal of the amnesty laws. By removi ng the extradition order, Kirchner increased the pressure placed on Argentinaâ€™s judiciary to either try t hose implicated in the abuses or see them face trial in another country. After Kirchnerâ€™s restructuring of the militar y, it is unclear what type of backlash could be expected in terms of civil-military relations and the possibility of protracted human rights trials in a country that is f acing serious economic problems. Additionally, if an amnesty law can be repealed 20 years after a military dictatorship hands power over to a civilian government, what are the imp lications for future de facto regimes? Some scholars may claim that the Argentine case sets a dangerous precedent since future de facto regimes may be less likely to hand over power peacefully with the
103 knowledge they may be able to escape pr osecution, but only for a little while. Since amnesty laws have been a prominent feature of the legal landscape of Latin America, the Argentine case may set a dangerous preceden t in other countries where trials could trigger a military backlash or other consequen ces. However, as explored in Chapter 3, the military government in Argentina was forced out of power without having any judicial guarantees that the o fficials would not face human rights charges. This occurred because of several related fact ors unique to Argentinaâ€™s politi cal situation at the time. The amnesty laws were passed several years after the transition to democracy, although they were passed amidst military rebellions and growing civil-military tensions. The fact that the amnesty laws and par dons were issued by democratic regimes further discredited their validity under interna tional law. Since they were not passed as a condition of a cease-fire during a civil war, or as a part of a negotiated pact during a transition to democracy, these amnesty laws we re seen as contrary to Argentinaâ€™s treaty obligations it had committed itself to be fore passing the laws. Even though the international community has commented that im punity for crimes against humanity is in conflict with internat ional human rights norms, other count ries have not revisited this issue. The work of the transnational advocacy network was instrumental in using international human rights law as a form of leverage to pressure Argentina to comply with its stated obligations and duties under in ternational law. Furthermore, the domestic NGOsâ€™ persistent pursuit of truth and justice sparked the longevity of this movement. Although other countriesâ€™ amnesty measures seem to be firmly intact, calls for truth and justice are not solely limited to organizations working within Argentina. In fact, this
104 move by the Argentine Congress to repeal the amnesty laws and recent trials in Argentina can be seen within a greater gl obal trend towards accountability. While Argentina has certainly gone farther than any othe r country in Latin America in repealing its amnesty laws and arresting military officials pending trials or extradition requests, other countries have also revisited the issue of justice for past human rights abuses. Also in 2003, Mexicoâ€™s Supreme C ourt ruled that former senior government officials could be prosecuted for the disappe arance of leftists during the â€œDirty Warâ€ Mexico waged against left from the 1960s to the 1980s. This decision allowed the arrests of two former chiefs of Mexicoâ€™s secret po lice, and may allow the prosecutor to try a former President, Luis Echeverra, who was in power from 1970 to 1976. After the ruling, forensics experts planned to dig up the suspected graves of victims of the â€œDirty Warâ€ (Weiner 2003). In neighboring Chile, where an amnesty pr ovision barring prosecution for atrocities committed between 1973 to 1978 was in plac e during the transition to democracy, progress has also been made in this fight for accountability. Current President Ricardo Lagos has advocated a variety of measures re lated to criminal prosecutions. Although no Congressional action has been initiated lik e in Argentina, Lagosâ€™ recommendations include moving proceedings from military to civilian courts, and using prosecutorial discretion to try only those who had the authority to give orde rs. Some of his measures are controversial among human ri ghts groups, such as the sugge stion to grant impunity to those who come forward with information, but the important point is that this issue of accountability for human rights abuses is not closed (HRW 2003).
105 Argentina is not alone in this desire to revisit and confront a violent past, establishing accountability, and proving that the rule of law extends to everyone, especially to those involved in crimes agai nst humanity. While it is uncertain if other countries will follow in Argen tinaâ€™s footsteps, it appears that for Argentina to move forward, international and domes tic pressures dictate that it must first heal old wounds. As Horacio Verbitsky, prominent Argentin e journalist and huma n rights activist, commented, â€œPeople always ask, â€˜Why reopen wounds that have closed?â€™ Because they were badly closed. First, you have to cure the infection, or they will reopen themselvesâ€ (quoted in Hayner 2001: 133). Although Argentina is facing a serious economic and social crisis, the events of the last year have demonstrated that demands for truth and justice will not be silenced. In the midst of social crisis, it app ears that revisiting this past is a way to deepen democracy by establishing the rule of law a nd demonstrating that the judici ary has the capacity to bring those guilty of the worst kinds of human rights abuses to justice.
APPENDIX A LETTERS FROM THE INTERNATIONAL CAMPAIGN TO FREE MARIO TEMPONE AND IRENE ORLANDO SOURCE: NACLA ARCHIVE OF THE AMERICAS ROLL 9
APPENDIX B CADHU BROCHURE COVER AND LETTER WRITING CAMPAIGN SOURCE: NACLA ARCHIVE ON THE AMERICAS ROLL 9
APPENDIX C AMNESTY MEASURES Ley 23.492 "Punto Final" (Sancionada el 23/12/86; promulgada el 24/12/86; publicada en el Boletin Oficial el 29/12/8) Extincin de la accin penal (Punto Final) Art. 1 â€“ Se extinguir la accin penal respecto de toda persona por su presunta participacin en cualquier grado, en los delitos del art. 10 de la ley 23.049, que no estuviere profugo, o declarado en rebeldia, o que no haya sido ordenada su citacin a prestar declaracin indagatoria, por tribunal competente, antes de los sesenta das corridos a partir de la fecha de promulgacin de la presente ley. En las mismas condiciones se extinguir la accin penal contra toda persona que hubiere cometido delitos vinculados a la instauracin de formas violentas de accin poltica hasta el 10 de diciembre de 1983. Art. 2 â€“ Dentro del trmino establecido por el artculo precedente las cmaras federales competentes podrn examinar el estado de las causas que tramitan ante el Consejo Supremo de las Fuerzas Armadas a los efectos del art. 10, ltima parte, de la ley 23.049. 123
124 Las denuncias que se formulen en este trmino ante el Consejo Supremo de las Fuerzas Armadas debern ser informadas dentro de las cuarenta y ocho (48) horas por el Consejo Supremo de las Fuerzas Armadas a la cmara federal que corresponda, quienes debern examinarlas y en su caso avocarse. Art. 3 â€“ Cuando en las causas en trmite se ordenare respecto del personal en actividad de las fuerzas armadas, de seguridad, policiales o penitenciarias, cualquiera sea su rango. La detencin o prisin preventiva previstas en los arts. 363 a 375 del Cdigo de Procedimientos en Materia Penal o en los arts. 309 a 318 del Cdigo de Justicia Militar, tales medidas se harn efectivas bajo el rgimen del inc. 2 del art. 315 de este ltimo Cdigo, a peticin del jefe de la unidad en que prestare servicio aqul personal, o de cualquier otro oficial superior de quien dependiese. En este caso, el superior ser responsable de la comparecencia inmediata del imputado todas las veces que el tribunal lo requiera. Art. 4 â€“ Las cuestiones de competencia que se susciten entre el Consejo Supremo de las Fuerzas Armadas y las cmaras federales o entre estas ltimas, as como la pendencia de recursos que impidan resolver sobre el mrito para disponer la indagatoria al tribunal competente, suspenderan el plazo establecido en el art. 1. Tampoco se computara el lapso comprendido entre la fecha de notificacin al Consejo Supremo de las Fuerzas Armadas del requerimiento de la cmara federal competente en el caso del art. 2 y la fecha de recepcin de la causa por sta. A los fines del art. 1 no ser de aplicacin el art. 252 bis ltima parte del
125 Cdigo de Justicia Militar. Art. 5 â€“ La presente ley no extingue las acciones penales en los casos de dlitos de sustitucin de estado civil y de sustraccin y ocultacin de menores. Art. 6 â€“ La extincin dispuesta en el art. 1 no comprende a las acciones civiles. Art. 7 â€“ Comunquese, etc.
126 Ley 23.521 Obediencia Debida (Sancionada el 4/6/87; promulgada el 8/6/87; publicada en el Boletin Oficial el 9/6/87) Ley de obediencia debida (â€œDue Obedienceâ€) Art. 1 â€“ Se presume sin admitir prueba en contrario que quienes a la fecha de comisin del hecho revistaban como oficiales jefes, oficiales subalternos, suboficiales y personal de tropa de las fuerzas armadas, de seguridad, policiales y penitenciarias, no son punibles por los delitos a que se refiere el art. 10, punto 1 de la ley 23.049 por haber obrado en virtud de obediencia debida. La misma presuncin ser aplicada a los oficiales superiores que no hubieran revistado como comandante en jefe, jefe de zona, jefe de subzona o jefe de fuerza de seguridad, policial o penitenciaria si no se resuelve judicialmente, antes de los treinta das de promulgacin de esta ley, que tuvieron capacidad decisoria o participaron en la elaboracin de las rdenes. En tales casos se considerara de pleno derecho que las personas mencionadas obraron en estado de coercin bajo subordinacin a la autoridad superior y en cumplimiento de rdenes, sin facultad o posibilidad de inspeccin, oposicin o resistencia a ellas en cuanto a su oportunidad y legitimidad.
127 Art. 2 â€“ La presuncin establecida en el artlculo anterior no ser aplicable respecto de los delitos de violacin, sustraccin y ocultacin de menores o sustitucin de su estado civil y apropiacin extorsiva de inmuebles. Art. 3 â€“ La presente ley se aplicar de oficio. Dentro de los cinco (5) dias de su entrada en vigencia, en todas las causas pendientes, cualquiera sea su estado procesal, el tribunal ante el que se encontraren radicadas sin mas trmite dictara, respecto del personal comprendido en el art. 1, primer prrafo, la providencia a que se refiere el art. 252 bis del Codigo de Justicia Militar o dejara sin efecto la citacin a prestar declaracion indagatoria, segn correspondiere. El silencio del tribunal durante el plazo indicado, o en el previsto en el segundo prrafo del art. 1 producira los efectos contemplados en el prrafo precedente, con el alcance de cosa juzgada. Si en la causa no se hubiere acreditado el grado o funcin que poseia a la fecha de los hechos la persona llamada a prestar declaracin indagatoria, el plazo transcurrira desde la presentacin del certificado o informe expedido por autoridad competente que lo acredite. Art. 4 â€“ Sin perjuicio de lo dispuesto por la ley 23.492, en las causas respecto de las cuales no hubiera transcurrido el plazo previsto en el art. 1 de la misma, no podr disponerse la
128 citacin a prestar declaracin indagatoria de las personas mencionadas en el art. 1, primer prrafo de la presente ley. Art. 5 â€“ Respecto de las decisiones sobre la aplicacin de esta ley, proceder recurso ordinario de apelacin ante la Corte Suprema de Justicia de la Nacin, el que podr interponerse dentro de los cinco (5) dias de su notificacin. Si la decisin fuere tacita, el plazo transcurrira desde que esta se tuviere por pronunciada conforme con lo dispuesto en esta ley. Art. 6 â€“ No ser aplicable el art. 11 de la ley 23.049 al personal con prendido en el art. 1 de la presente ley. Art. 7 â€“ Comunquese, etc.
129 Ley 25.779 Declranse insanablemente nulas las Leyes Nros. 23.492 y 23.521. Sancionada: Agosto 21 de 2003. Promulgada: Septiembre 2 de 2003. El Senado y Cmara de Diputados de la Nacin Argentina reunidos en Congreso, etc. sancionan con fuerza de Ley: Art. 1â€” Declranse insanablemente nulas las Leyes 23.492 y 23.521. Art. 2â€” Comunquese al Poder Ejecutivo nacional. DADA EN LA SALA DE SESIONES DEL CONGRESO ARGENTINO, EN BUENOS AIRES, A LOS VEINTIUN DIAS DEL MES DE AGOSTO DEL AO DOS MIL TRES. â€” REGISTRADA BAJO EL N 25.779 â€” EDUARDO O. CAMAO. â€” JOSE L. GIOJA. â€” Eduardo D. Rollano. â€” Juan Estrada.
APPENDIX D ARGENTINAâ€™S TREATY OBLIGATIONS WITH CONSTITUTIONAL STATUS Source: Subsecretaria de Derechos Humanos y Sociales. 1999. Derechos Humanos. Instrumentos Internacionales con Rango Constitucional. Buenos Aires: Ministerio del Interior. Universal Declaration of Human Rights, adopted by the U.N. General Assembly, December 10, 1948 American Declaration of the Rights and Obligations of Man, approved in 1948. Convention for the Prevention and Elimination of Genocide, Dec. 9, 1948 Approved by Law No. 6286/56 on April 9, 1956 Ratified June 5, 1956 Reservations: Argentina reserves the right to not submit controversies to the ICJ (art.IX) that arise under article 12. American Convention on Human Rights, Nov. 22, 1969 Approved by Law N. 23.054 on March 1, 1984 Ratified September 5, 1985 Reservations: With respect to article 21, the Argentine government does not submit questions related to the political economy to an international tribunal. National tribunals are the ultimate authority with respect to these issues. Interpretive Declarations: attached to articles 5(3), 7(7), and 10 (not relevant to this case). Argentina recognized the competence of the Inter-American Human Rights Commission and the Inter-American Court of Human Rights, under a condition of strict reciprocity, to hear cases related to the interpretation or application of the Convention (with exception of the reservation and declarations attached). 130
131 International Convention on Civil and Political Rights, Dec. 16, 1966 Approved by Law N. 23.313 on April 17, 1986 (includes Optional Protocol) Ratified August 8, 1986 Reservations: Related to the sovereignty of Argentina over the Islas Malvinas; also art. 15 is subject to principle in art. 18 of national constitution. Recognizes authority of Human Rights Commission. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984 Approved by Law N. 23.338 on July 30, 1986. Ratified on September 24, 1986. Declaration: With respect to arts. 21 & 22, Argentina recognized the authority of the Committee Against Torture to receive and investigate allegations that one state brings against another that doesnâ€™t comply with obligations under the Convention. Additionally, Argentina recognizes the authority of the Committee to receive and investigate allegations by people under its jurisdiction, or in their names, who are alleged victims of a state party to the Convention.
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BIOGRAPHICAL SKETCH Kirsten Anderson graduated from the University of Florida in 2001 with a Bachelor of Arts in Spanish literature. She also received a minor in English literature and earned an Undergraduate Certificate in Latin American Studies. In August 2001, she began a joint degree program at the University of Florida, pursuing a Master of Arts in Latin American Studies and a juris doctor from the Levin College of Law. At the Center for Latin American Studies, Anderson was awarded a research assistantship for two years of graduate study. Her concentration was political science/law and her research interests included the Southern Cone, gender, and international human rights law. In the summer of 2002, she received a F.L.A.S. scholarship to study Portuguese in Rio de Janeiro, Brazil. At the Levin College of Law, she was awarded the Chester L. Ferguson law scholarship. She is also a member of the editorial staff of the Florida Journal of International Law, and the Executive Research Editor for Fall of 2004. She will graduate with her joint JD/MA in May 2005. 141