Beyond Punishment: Justice in the Wake of Massive Crimes in Argentina

Article excerpt

"The history of power politics is nothing but the history of international crime and mass murder (including, it is true, some of the attempts to suppress them)."

Karl Popper(1)

In Argentina, between 1976 and 1983, thousands of people were secretly kidnapped and tortured in hundreds of detention centers throughout the country. More than 10,000 people were murdered by a military regime that took control with widespread national and international support.(2)

Argentina's military dictatorship came to power through a coup d'etat to combat leftist guerrillas and attempt to solve the nation's severe economic crisis. The military dictatorship lasted until 1983, when a renewed economic crisis and Argentina's defeat in the war against United Kingdom over the Malvinas/Falkland Islands initiated a transition to democracy.

Public trials were held in 1985 and 1986 to hold military officials responsible for the tortures and killings. In all, 481 military and police officers were indicted; 16 were tried--11 of whom were top-level officers--and 11 were convicted.

In 1990 President Carlos Menem ordered that these officers be pardoned and released, erasing the tentative gains for justice. In this article, I seek to address the relationship between mass crimes and prosecution and their impact on democratic systems. The absence of democratic institutions in Argentina allowed for these crimes to happen, and while the trials worked to strengthen Argentina's new-born democracy, they put that same democracy at risk.

While I believe the passage of the laws and the pardon which limited the reach of the prosecutions undermined the process of serving justice, I am convinced that no judge or system of justice can replace civil society's role in forging its own path toward justice. Punishment cannot be the only answer.

As a prosecutor in the trials of those responsible for state-sponsored "disappearances" and systemic torture, I realized the limits of using a criminal justice system to prosecute gross violations of human rights. Crimes like those committed in Argentina during the so-called "Dirty War" were more complex than regular crimes: instead of upholding laws, authorities ordered them violated; law enforcement agencies committed crimes instead of preventing them; criminals were not isolated by society, but rather were supported by its elite; and finally, groups that the regime deemed problematic were systemically eliminated with no respect for their human rights.

In 1983, I had great hopes that the trials and prosecutions would transform Argentina from a country where impunity reigned to one in which the rule of law was uniformly respected. I thought the legal system would provide the most comprehensive response, but it was only part of the solution. Civil society was strengthened as a result of the investigations and public trials, which increased the public's commitment to, and respect for, democracy and permitted--through the newly-created free press--a constructive public debate. Stories about kidnapped children, atrocious tortures and people being thrown from navy airplanes to their death at sea became household information. Knowledge about the violence employed by the military to fight "subversion" provoked a reevaluation of the past and the military's claim of victory in the fight against communism was supplanted by humanitarian and legal judgments. As society expressed its increased investment and commitment to democracy, the military lost much of its credibility and power.

Based on the example of Argentina, I propose that the information revealed about past crimes in public trials may be as important as the punishment. Punishment is just one part of the criminal justice system and its application does not guarantee the reformation of the society or its authorities. While I believe reconciliation is impossible, mere retribution is not productive.

Evaluating Argentina s experience in five chronological phases, this article will address the question of seeking justice in the wake of mass crimes against humanity, concluding with some general lessons that can be taken from the Argentine case. …