A generation ago, officials from Argentina’s Naval Mechanics School, known by its Spanish acronym, ESMA, secretly loaded drugged prisoners into aircraft and threw them out over the brown and frigid waters. As many as 5,000 people were “disappeared” at the hands of ESMA, perhaps the most horrifying symbol of South American repression in the 1970s.
Earlier this month, more than 30 years after these crimes were committed, 19 officials from ESMA finally appeared in court.
The trial is the product of a debate emerging all across Latin America: Should amnesty laws passed a generation ago to shield authorities from Latin America’s repressive dictatorships from prosecution still be respected? If so, why?
“It’s a dramatic choice,” says Leo Filippini, a law professor at the University of Palermo in Buenos Aires with expertise in transitional justice. “Should we have late trials against old men, or leave people who tortured to get pensions and retire with military honors … while the victims get no justice and the person who tortured them lives down the street from them?”
In the 1980s, Latin America’s emerging democracies reached an uncomfortable compromise: In exchange for immunity for crimes committed during repressive “anticommunist” rule – including illegal detention, kidnapping, torture, murder, and forced disappearances – the armed forces relinquished power and allowed civilian governments to rule.
Today, however, freed from the pressure of military rebellion, Latin countries are revisiting these deals.
Chile and Argentina are marching ahead with wide-reaching prosecutions. Through a series of judicial opinions, Chile’s amnesty law – decreed in 1978 by Gen. Augusto Pinochet, who ousted socialist President Salvador Allende in 1973 – has been rendered inapplicable. Approximately 300 officials have been convicted in recent years, and scores more await trial.
Argentina’s amnesty laws – passed in 1986 and 1987, after the military rebelled when the young democratic government began prosecuting the military’s highest authorities – were revoked by the Congress in 2003 and declared unconstitutional by the Supreme Court in 2005. Fifty-five officials from Argentina’s dictatorship – which ruled from 1976 to 1983 and “disappeared” as many as 30,000 people during the country’s so-called “dirty war” – have been convicted, and 625 others are being investigated.
According to Juan Méndez, an Argentine-born visiting professor at the Washington College of Law at American University, who has also served on the Inter-American Commission on Human Rights, Chile and Argentina are an “example to the world.” He says they are fulfilling their duty under international law to prosecute crimes committed by the state and are finally providing victims with a remedy after denying them all judicial recourse for decades.
Where prosecution lags
But other countries have not rushed to prosecute their aging military officials as a way of coming to terms with the past.
In Brazil, a debate is emerging. Last year, President Luiz Inácio Lula da Silva’s justice minister suggested that Brazil’s amnesty, passed by the military dictatorship in 1979 and respected until today, should not be allowed to shield torturers. A truth commission on the status of approximately 140 people who disappeared during the dictatorship’s rule between 1964 and 1985 will be announced next month, and some see it as a first step toward prosecution. A case is also currently in front of the Brazilian Supreme Court to challenge the amnesty law.
In neighboring Uruguay, there is a social tug of war over the country’s 1986 amnesty law, passed one year after democracy returned. Exceptions to the law have allowed cases to advance since 2005 against several high-ranking officials, including the country’s first dictator, Juan María Bordaberry, who dissolved Uruguay’s Congress and became de facto president in 1973.
But the justice system is still barred from pursuing most criminal actions. The Supreme Court declared the law unconstitutional last month, but the decision only has legal force in that case. Six days later, voters rejected a plebiscite to wipe the amnesty off the books, as they also did in 1989. The Supreme Court decision and the vote must now be reconciled.
Gonzalo Aguirre, a former Uruguayan senator who voted for Uruguay’s amnesty law and served as vice president for the conservative National Party from 1990 to 1995, expressed his opposition to repealing Uruguay’s amnesty law, a common sentiment throughout the region. “Governments have to confront real problems,” he said in an interview with the Monitor. “This is a problem from 35 years ago.”
‘We want to know’
According to some legal experts in Chile and Argentina, the prosecutions have violated constitutional prohibitions on ex post facto and retroactive laws.
Opponents to prosecutions in Brazil and Uruguay often cite these same arguments: The military was granted amnesty, and that promise cannot be revoked.
“From the substantive view, it’s not bad that these people are being prosecuted,” says José Sebastían Elías, a constitutional law professor at the University of Palermo in Buenos Aires. But he asks about the process under way in his country: “How many institutional manipulations are we willing to live with to reach substantive justice?”
The desire for justice and punishment, however, is compelling.
“We want to know what happened with our children, who gave the orders, who killed them and where is their final resting place,” says Marta Vasquez, the president of Madres de Plaza de Mayo, a group of women who began to protest against the dictatorship in 1977 for information on their missing children.
Ms. Vasquez’s daughter, Maria, was kidnapped with her son-in-law, César Lugones, in May 1976. She never saw her daughter again, and has received only fragmentary information about her final days.
Vastly different approaches
Though this debate has generated the same outcome in Argentina and Chile, where a cascade of cases are moving forward against high- and low-ranking officials alike, the manner in which each of these countries has proceeded is vastly different.
In Argentina, the process has been a chaotic, start-and-stop process, alternately generating great hope, disappointment, and seething resentment.
After human rights groups spent nearly two decades trying to break “the impunity,” former President Nestor Kirchner oversaw the repeal of Argentina’s amnesty laws shortly after being elected president in 2003.
Mr. Kirchner’s wife, Cristina Kirchner, succeeded her husband two years ago, continuing a push for dirty-war prosecution. But opposition to the trials appears to be growing as the political popularity of the Kirchners falls.
Here at the Templar Bar, a lunch spot in downtown Buenos Aires frequented by bankers and other professionals, patrons often discuss politics over steak, potatoes, and other hearty Argentine fare.
“It’s totally political,” says Angel Cesar Maroni, a stock and commodities trader. “This wouldn’t have happened without the government.” He does not have confidence in the trials because they are “totally one-sided,” a reference to the fact that the military is being prosecuted, but Argentina’s guerrillas – who killed several hundred people before the coup – are not.
Mr. Maroni says that the Kirchners, who have publicly vindicated the leftist ideological struggle of the 1970s, are taking revenge. (Under international law there is a continuing duty to prosecute crimes committed by the state. Other crimes, such as those committed by the guerrillas, may be amnestied or subject to a statute of limitations.)
The trials in Argentina have also suffered from logistical problems. Many have languished in the pretrial phase. According to numbers compiled by the public ministry, 445 people are currently being held in pretrial preventive detention. Defendants have been detained for several years or more. Less than 10 percent of cases have reached a verdict, and the lack of a guiding prosecutorial strategy has forced victims to return to courts time and again to relive painful memories.
This frustration was on display last month after a court in Buenos Aires absolved three former Army officials. As the judges retired from the courtroom, an angry crowd chanted “accomplices” at the judges and “murderers” at the absolved defendants. After the trial, Ileana Denis, whose son Carlos was a victim in the case, called the decision a “horror.”
The process in Chile has been more “mature,” according to Jose Zeitune, of the International Commission of Jurists in Geneva. Cases have proceeded in a quicker and more orderly fashion. More than four times as many officials have been convicted than in Argentina.
Nevertheless, activists in Chile have been disappointed by sentences, which have generally been five years or less even in cases of homicide. “It’s not the justice we want,” says Roberto Garreton, who is currently a member of the United Nations’ Working Group on Arbitrary Detention. Still, he says, it’s a change from the time that the justice system did nothing.