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Steps Closer to Justice for Past Crimes in Argentina and Chile: A Story of Judicial Boldness
Date: 11/17/2004



Steps Closer to Justice for Past Crimes in Argentina and Chile: A Story of Judicial Boldness
By Raquel Aldana*

Over the last five years, a wave of human rights prosecutions has gathered momentum, not only in Argentina but also in its Southern Cone neighbor, Chile. These two countries, governed by repressive military regimes in the 1970s and 1980s, suffered a similar pattern of human rights violations that included torture, extrajudicial executions and forced disappearances.

In Argentina, for the first time since 1987, courts have reopened several trials against military officers for crimes committed during Argentina's "dirty" war. Until then, prosecutions had been stifled by two amnesty laws (Full Stop and Due Obedience) that had remained in force for almost two decades and by the institutional weaknesses that characterize democracies in transition.1 On November 9, 2001, however, the Federal Court of Buenos Aires unanimously affirmed Judge Gabriel Cavallo's March 2001 decision to declare Argentina's amnesty laws unconstitutional, in a ruling that still awaits verdict by Argentina's highest court.2 Judge Cavallo declared, inter alia, that Argentina's international obligations should take precedence over domestic law and held that the punishment of crimes against humanity is mandated by international jus cogens principles.3 Congressional response followed this landmark decision two years later when in August of 2003 both houses of Argentina's Congress voted by a large majority also to annul these laws.4

In Chile, courts have accomplished what would have been impossible a decade ago: They have indicted Augusto Pinochet twice and charged (and in a few cases convicted) several others for crimes committed during Pinochet's dictatorship. The most recent Pinochet indictment occurred in August of 2004 when the Chilean Supreme Court, sidestepping Chile's 1978 amnesty decree,5 stripped Pinochet of his immunity to face trial for kidnapping, illegal association and torture.6 Under this recent indictment, Pinochet again may be found incompetent to face trial due to mental illness.7 Nevertheless, these rulings have permitted judges to question Pinochet in his home.8 Also, within days of his first indictment, the former dictator decided to retire from the Senate and from public life. These two outcomes alone were a significant symbolic victory, especially for the victims' families.

Much of the impetus driving the courts into action has been attributed to the new tide, promoted substantially by human rights groups, in favor of transnational and international justice against the persistent impunity in these nations. The watershed for Latin America was the arrest of Augusto Pinochet in London in October 1998 at the request of Spanish Judge Baltasar Garzon. Since then, extradition requests from Europe to Latin American nations have been made with unprecedented frequency, deriving mostly from Garzon's criminal investigations, but also other cases in Italy, France, Germany, Switzerland and Sweden. In addition, human rights bodies, especially of the Organization of American States, continue to play an important role in the promotion of accountability in these countries.

However significant international pressure has been, these recent judicial developments advancing accountability for past crimes must not be viewed as new phenomena. Argentina, especially, has been seriously confronting the issue of accountability for past crimes at least since as early as the return to civilian government in 1983. Even then, the government of Raul Alfonsin fully supported the prosecution of human rights abuses and Congress annulled the military's amnesty law.9 Of course, after seven years of brutal military rule, democratic institutions were understandably weak and easily intimidated by military threats.10 Now, almost three decades later, Argentine democracy appears much stronger, while the military has lost much of its power and influence. While Chile had also taken prior steps forward, these new developments toward accountability for past crimes are probably the most significant to date. Nevertheless, these are also emblematic of a changed legal and political landscape in Chile's attitude toward the need to confront its past.

What remains to be seen is what effect these advances in accountability for past crimes in Argentina and Chile will have on the promotion of broader justice reforms, particularly relating to the role of the judicial branch in checking potential executive and legislative breaches of constitutional order and individual rights. Not unlike other Latin American nations, the legal history of these two countries reveals a judiciary with little social relevance, subservient to the executive or military, and mostly engaged in routine, non-innovative decision-making. In this regard, there are positive signs of change. Also at the prompting of human rights groups, Argentine and Chilean judges have acted independently to issue a series of rulings that over time have innovatively chipped away at the legal and political impediments to accountability. More importantly, these decisions, despite some setbacks, have endured political resistance by the other branches of government and the military. In fact, today, the Argentine legislature and the executive, and even the military, are supporting the judiciary's efforts to enforce accountability for past crimes. While more measured, the executive in Chile and -- to a lesser extent -- Congress and the military, are also supporting or accepting the inevitability of confronting the past.

Lastly, these developments in past accountability also reveal civil society's renewed fervor in the case of Argentina and new commitment on the part of Chile, at least by a substantial sector of society, to confront the past.11 A society's confrontation of its past is a significant and necessary step toward democratic consolidation.

What follows is a brief account of the judiciary's role in Argentina and Chile to bring to justice those responsible for past crimes, and of the response by the relevant institutions of justice to these efforts.

The Role of Argentine and Chilean Judges in Promoting Accountability for Past Crimes

Despite some setbacks resulting in the passing of amnesty laws,12 the stage for a culture of accountability for past crimes was established in Argentine courts immediately following the return to democracy with the decision of President Alfonsin to prosecute the past regime's crimes. Since then, responding to persistent efforts by human rights groups and international pressure,13 courts in Argentina have increasingly undertaken bold judicial actions on behalf of victims of atrocities, even when past presidents and the military have undermined these efforts.14 Argentina's courts have employed creative judicial mechanisms or legal doctrines for circumventing bars to prosecutions.

In emblematic "truth trials" filed to investigate the dirty war atrocities begun in 1995,15 for example, judges began to break the military's code of silence about the atrocities committed during the dirty war by issuing orders, including for arrests, seeking to compel officers and soldiers to reveal the truth. These truth trials continue even today across the nation, some with considerable publicity and with significant gains on the accumulation of information about Argentina's disappeared.16 Similarly, Argentine courts reached significant advances on cases concerning the theft and illegal adoption of babies born to mothers held in secret detention by excluding these cases from the amnesty laws.17 Aside from the prosecution and punishment of several former members of the military juntas and couples who received the babies and lied about their identity, these cases established important legal precedent, including the treatment of these crimes as crimes against humanity not subject to the statute of limitations. All of these antecedents contributed to the latest rulings declaring the amnesty laws of Argentina unconstitutional.

In contrast to Argentina, Chilean courts did not make substantial progress on human rights investigations until after Pinochet's arrest in London. The absence of judicial activism is explained by the pro-Pinochet political climate that persisted in Chile and permeated the courts even after Chile's return to democracy. Before departing the Presidency, Pinochet left in place a pliant judiciary by retiring ageing judges and replacing them with younger men he personally selected.18 Furthermore, military courts exercised jurisdiction over officers accused of human rights violations, and an army judge sat on Supreme Court panels dealing with appeals affecting cases under military jurisdiction.19 Both military tribunals and the Supreme Court frequently blocked prosecutions initiated in the lower courts by invoking the amnesty decree.20

Pinochet's prosecution abroad changed the legal and political landscape in Chile, which also sparked significant progress in the courts in holding to account human rights violators. In recent years, special judges appointed since 2001 to investigate killings and disappearances under military rule have repeatedly cited the permanent crime doctrine to sidestep the amnesty decree.21 The year 2002 saw the first conviction for human rights crimes committed during the military regime.22 As of July 2004, more than 300 individuals were facing charges such as kidnapping, murder, and arbitrary arrests, and at least 22 defendants had been convicted.23 The Supreme Court, which is scheduled to hear appeals soon against the first convictions for crimes committed during the period the amnesty covers, will decide whether these holdings will leave a more permanent imprint on Chile's pursuit of accountability.

The Response to the Judiciary by the Political Branches of Government

Carlos Nino reflected that the few early trials in Argentina to hold the military accountable for the crimes of dirty war served as a great occasion for social deliberation and for collective examination of the moral values underlying public institutions among Argentines.24 Similar observations have been made with regard to Chile, in response to Spain's attempt to prosecute Pinochet.25 The effect of such engagement with the injustices of the past explains in part why civil society in Chile and Argentina have elected public officials, including Presidents, who espouse a human rights agenda that is consistent with the trend begun by the courts. In light of these political shifts, the military also has had to compromise some on its opposition to past accountability.

The Executive

In Argentina, President Nestor Kirchner -- unlike his immediate predecessors --has insisted since he took office in May of 2003 that those who violated human rights during military rule should be held accountable. Within days of taking office, for example, President Kirchner fired senior military officers who had lobbied for officers under prosecution for human rights abuses committed during the military rule.26 Then in July of 2003, President Kirchner repealed Decree 1581, adopted by former President Fernando De la Rua in December of 2001, that prevented the extradition of Argentines from standing trial abroad for human rights abuses, a policy that, in practice, has already been followed since 1983.27 President Kirchner also firmly backed the decision by both chambers of Congress to annul the amnesty laws.28

Since President Ricardo Lagos took office in March 2000, he also has supported Chile's progress toward accountability, although with a hands-off approach. Notably, President Lagos rejected calls from pro-military political sectors to intervene in criminal prosecutions or to impose a time limit on judicial investigations.29 In August 2003, President Lagos announced his first major initiative to deal with the legacy of human rights violations committed under military rule. Several of the proposals would be positive steps, including the transfer of all human rights cases in military jurisdiction to civilian courts, providing courts with power to subpoena classified documents from the armed forces, and continuing with the appointment of special judges to devote themselves full-time to human rights cases.30 President Lagos also has supported fully the creation of the National Commission on Political Imprisonment and Torture in 2003 to study cases of torture.31

Some, however, have criticized President Lagos for not being sufficiently vigilant in promoting accountability for the past human rights crimes. For example, President Lagos has never urged Congress to annul Chile's 1978 amnesty law, choosing instead that its application be left to the discretion of Chilean courts.32 Furthermore, among his administration human rights proposals, President Lagos has supported immunity from prosecution for members of the military who allege they were acting under orders or who come forward to provide information to the courts about past crimes.33

The Military

Constitutionally, the armed forces are directly subordinate to the president in Chile and in Argentina. The president then, in theory, has the power to force the military to comply with any judicial order furthering prosecutions, and the military's attitude toward the judiciary should also mirror that of the administration. In practice, however, military esprit de corps continues to be a potent independent bulwark against accountability in Argentina and Chile, although that too appears to be softening in recent times.

In Argentina, at least since 1995, the military's response confronting abuses committed by its officers and soldiers during the dirty war has been mixed. That year, in a significant break from a policy of denial and resistance, confessions by individual officers and soldiers culminated in Gen. Martin Balza's acknowledgement of the army's responsibility for gross and systematic violations of human rights.34 The advance from this admission, while significant for mobilizing and providing momentum for Argentina's civil society to renew calls for truth and justice, was short-lived within the military. Initial advances in truth trials came to a screeching halt when the few judges who had consistently favored the investigations found themselves isolated from their colleagues,35 the latter apparently influenced by the military's persistent objections and refusal to cooperate in the investigations. Even after a friendly settlement agreement between the Argentine government and victims to continue the truth trials, brokered by the Inter-American Commission on Human Rights in 1999,36 the army's cooperation was at best minimal.37 In fact, in 2000, Gen. Ricardo Brinzoni, the most senior army officer, publicly criticized the trials as futile and procedurally unfair to the rights of soldiers.38 Today, that attitude seems to be changing, in part because priorities in the military have changed with the change in personnel. In fact, meager salaries and poor equipment appear to be more of a concern to young officers than the repeal of the amnesty laws.39 More recently, General Brinzoni even invited Judge Cavallo to a military ceremony where General Brinzoni pledged that the armed forces would respect decisions of the judicial branches.

Chile's military leaders remain powerful actors in the political process. In the past, the relationship between the government and the military has been punctuated by tense standoffs.40 Chile is far from being a country in which military commanders are public servants, subordinate to civilian leaders and answerable to the courts. Despite this, the military has taken small steps toward accepting accountability. For example, it has publicly acknowledged human rights violations41 and, in marked contrast with previous years, now extends at least limited (i.e. more formal than substantive) cooperation to judicial investigations.42 Nevertheless, due in large part to military intransigence, progress toward clarifying the fate of Chile's 1,102 disappeared has been painfully slow.43 Furthermore, legal reforms needed to restore the authority of the elected government over the armed forces are still pending after more than a decade of democratic rule. These include constitutional amendments to end the armed forces' official role as guardians of the constitution, and to restore the president's power to remove the commanders-in-chief.

Congress

In Argentina, the most positive sign that Congress supports the courts in their efforts for past accountability is the fact that in August of 2003 both houses of Argentina's Congress voted by a large majority also to annul these laws. Unlike Argentina, in the Chilean Congress no proposals to repeal or annul the amnesty decree have been introduced as of yet.44

What the Future May Hold?

Key factors in Argentina and Chile suggests that the recent advances toward accountability for past crimes advanced by the courts are likely to continue. First, the danger of a violent backlash by the military does not appear to be a critical threat in either country. Second, the absence of competing pressing needs, like the relative political and economic stability in Chile, could contribute to a greater willingness to devote resources to issues of the past. Interestingly, despite Argentina's recent economic crisis, the mood is still strongly in favor of confronting the past. Finally, the admirable and persistent search for truth and justice by human rights groups on behalf of victims, as supported by transnational and international efforts, are likely to motive Chile and Argentina to push for greater accountability, especially if doing so may yield positive diplomatic relations with other nations or international financial institutions.



*Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas.
1The Full Stop law adopted in 1986 prevented the hearing of cases filed with the courts after a deadline of 60 days. Ley de Punto Final, Law No. 23.492, Dec. 29, 1986. The Due Obedience Law adopted in 1987 granted automatic immunity to all members of the military, except those in positions of command. Obediencia Debiba, Law No. 23.521, June 8, 1987.
2"Simon, Julio, Del Cerro, Juan Antonio s/ sustraccion de menores de 10 anos,", National Court No. 4 for Federal and Correctional Matters. Since then, several other Argentine courts have followed suit and declared the amnesty laws null and void. Amnesty International and The International Commission of Jurists, Argentina: Legal Memorandum on the Full Stop and Due Obedience Laws, AI Index: AMR 13/018/2003.
3Daniel W. Schwartz, Rectifying Twenty-five Years of Material Breach: Argentina and the Legacy of the 'Dirty War' in International Law, 18 EMORY INT'L L. REV. 317, 337-340 (discussing the Cavallo ruling).
4Id. at 368.
5Decree No. 2191barred the prosecution of human rights crimes committed from 1973-1978, the period in which the worst political repression took place. Decree Law No. 2191 (Diario Oficial, April 19, 1978). As of yet, no Chilean judgment has invalidated Chile's 1978 amnesty decree, although such a ruling is pending in the Chilean Supreme Court.
6Resolucion de la Corte Suprema que Ratifica el Desafuero a Augusto Pinochet, Case No. 2966-04 (Aug. 26, 2004), available at www.emol.com/noticias/documentos/desafuero_pinochet.asp.
7Four years earlier, following Pinochet's return from London where he almost faced extradition to Spain, a Chilean court had already stripped Pinochet's immunity to face trial for murder and disappearances. Yet, in July of 2002, the Chilean Supreme Court halted the trial resulting from the first indictment, reasoning that medical tests showed that Pinochet, then 84, was suffering from irreversible and progressive mental deterioration. Sobreseimiento in Caravan of Death Case, No. 2986-01, available at www.elmostrador.cl/c_pais/pino_sobreseido.htm
8Larry Rohter, Judge Questions Pinochet about Killings Under His Rule, THE N.Y. TIMES, Sept. 27, 2004.
9Schwartz, supra note 3, at 326-329 (describing Alfonsin's human rights agenda).
10President Alfonsin rushed through Congress the Full Stop and Due Obedience amnesty laws in order to quell a military revolt in response to hundreds of prosecutions then underway for crimes committed during the "dirty" war. Id. at 329-333.
11In fact, on November 15, 2004, Pinochet's own eldest daughter, in an interview with a Chilean TV station, stated that the use of torture during her father's regime was "barbaric and without justification." In the past, she had accused the media of demonizing her father. Daughter Rues Pinochet -Era Abuses, BBC NEWS, Nov. 15, 2004, available at news.bbc.co.uk/go/pr/fr/-/2/hi/Americas/4008085.stm.
12In December of 1987, the Supreme Court, upheld the Constitutionality of Argentina's amnesty laws. Human Rights Watch, 2003 World Report: Argentina, available at www.hrw.org/wr2k3/pdf/argentina.pdf.
13See Janet Koven Levit, The Constitutionalization of Human Rights in Argentina: Problem or Promise? 37 COLUM. J. TRANSNAT'L L. 281, 324 (1999) for a discussion of the role in NGOs in promoting Argentine courts' pursuit of human rights.
14In a 1999 article, Professor Janet Koven Levit concluded that, despite the 1994 Constitutional reforms in Argentina, which endowed nine human rights treaties with constitutional standing, courts had been "relatively passive transnational actors, failing to harness the potency and breadth of international human rights law." Id. at 324. Given some of the recent decisions of Argentine courts, that assessment is quite different today.
15"Truth Trials" (juicios por la verdad) were an Argentine justice innovation. Unlike ordinary criminal trials, judicial action was expressly limited to investigation and documentation, without there being a possibility either of prosecution or punishment.
16Human Rights Watch, 2001Country Reports: Argentina, available at www.hrw.org/reports/2001/argentian/argen1201.htm.
17Roseann M. Latore, Coming Out of the Dark: Achieving Justice for Victims of Human Rights Violations by South American Military Regimes, 25 B.C. INT'L COMP. L. REV. 419, 434-37 (discussing baby-snatching cases in Argentina).
18Human Rights Watch, Discreet Path to Justice?: Chile, Thirty Year after the Military Coup 4 (Sept. 2003).
19Id.
20Id.
21Human Rights Watch, Chile: Court Ruling May Define Future of Rights Prosecutions, available at hrw.org/English/docs/2004/05/27/chile8622_txt.htm.
22HRW, Discreet Path to Justice?, supra note 18, at 7.
23Human Rights Watch, 2004 Country Reports, Chile, available at hrw.org/English/docs/2003/12/31/chile7000_txt.htm.
24CARLOS SANTIAGO NINO, RADICAL EVIL ON TRIAL 133 (1996).
25HRW, Discrete Path to Justice?, supra note 18, at 5 (describing that a new, more outspoken and challenging debate on human rights began to occupy the Chilean media and that the political parties on the right, facing a presidential election in December 1999, distanced themselves from Pinochet's legacy).
26Human Rights Watch, Essential Background: overview of Human Rights Issues in Argentina (Jan. 2004), available at hrw.org/english/docs/2004/01/21/argent6979_txt.htm.
27Id.
28Id.
29HRW, Discrete Path to Justice?, supra note 18, at 5
30Id. at 9.
31Id.
32Amnesty International, Chile: Continuing Failure to Bring an End to Impunity, AI Index: AMR 22/009/2003 (Augt. 15, 2003).
33Id
34Balza followed his acknowledgement with a policy of firing officers who continued to vindicate the actions and goals of the military juntas, and ordering his troops to respect court summonses. HRW Country Reports, Argentina, 2001, available at www.hrw.org/reports/2001/argentian/argen1201.htm.
35It would take another three years for the Argentine Supreme Court to decide on appeal on August 13, 1998, in a five to four judgment to definitively close the truth trials, stating in a fourteen-line opinion simply that such trials would be pointless without the possibility of a prosecution.
36Inter-American Commission on Human Rights, Carmen Aguilar de Lapaco v. Argentina, Case No. 12.059, Report No. 21/00 (Feb. 29, 2000).
37Despite the Supreme Court's 1998 holding, truth trials continued. However, Army officers called to give evidence in these proceedings frequently refused to do so, while the military provided legal and moral support to officers who were detained for contempt of court or perjury.
38Eduardo Van Der Kooy and Walter Curia, Brinzoni: Los Juicios por la Verdad no Lograron Nada, CLARIN, July 26, 2000. In contrast, the army has repeatedly declared its support for the investigations of theft of babies and their illegal adoption, including by supporting a genetic data bank to identify the missing children.
39Schartz, supra note 3, at 368.
40HRW, Discreet Path to Justice?, supra note 18, at 13.
41Chile Army Admist Rights Abuses, BBC New, Nov. 9, 2004, available at news.bbc.co.uk/go/pr/fr/-/2/hi/ammericas/3987341.stm.
42HRW, Discreet Path to Justice?, supra note 18, at 13.
43Id. at 6.
44Id. at 4.



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