New York, Oct. 20 – Since the repeal of amnesty laws in 2003, Argentina has reopened trials against those responsible for murder, torture, rape, abduction, and kidnapping during the country’s 1976–1983 ” Dirty War .”
“Processes of Justice: The Argentine Experience,” a two-day conference held in New York, saw federal judges and prosecutors involved in the trials, and senior officials from the Secretariat of Human Rights , discuss this important and gripping process.
On Day 1, panelists revisited the “atmosphere of terror” that existed under Argentina’s military junta. As Secretary for Human Rights Eduardo Luis Duhalde described, there were “massive yet selective” lists of social, political and student activists drawn up, anyone who was “critical of the process” that brought the dictatorship to power. Attorneys, journalists, and psychologists too were arrested, and eventually “disappeared” via clandestine detention centers whose “product was horror.”
Andrea Gualde, National Director of Legal Affairs of the Secretariat of Human Rights, discussed the difficulty of making reparations to the victims of state terrorism. “The victim must not be revictimized,” Gualde emphasized. It is also important for there to be guarantees that the terror will not be repeated, which means that reparations are directed as much at society as at the individual. In Argentina this has led to the concept of a “right to truth” and the creation of “places of memory,” including, in 2003, theNational Archive of Memory .
Undersecretary for Human Rights Luis Alen drew attention to legal obstacles to addressing the past, including the “ Full Stop ” and “ Due Obedience ” laws, adopted under President Raúl Alfonsín to stop investigation and prosecution of those accused of political violence under the dictatorship. Alen noted that this was a major blow to justice, given how few judges had had the courage to denounce the dictatorship’s laws as unconstitutional.
One of the day’s recurring themes was expressed during the second panel by Judge Sergio Gabriel Torres: “Impunity weakens democracy and rule of law.” Torres presides over the ESMA case , involving over 800 incidents of detention, torture, disappearance, and death at the Navy School of Mechanics (ESMA), one of the largest clandestine detention centers under the 1976–1983 military dictatorship.
Judge Daniel Rafecas spoke of the dehumanization of victims of Argentina’s state terrorists, noting that torturers saw their victims as “a reservoir of information rather than a human being.” Murders were not generally carried out in detention centers, but trucks came and carried away the drugged victims in a process euphemistically referred to as “transfers.” Not a single “transfer” ever came back alive.
Noting the presence of Nazi paraphernalia in the Argentinean military dictatorship’s detention centers and the fact that some torturers even played Hitler speeches as they tormented their victims, Judge Rafecas noted similarities and differences between Argentina’s Dirty War and the Jewish Holocaust. Unlike the large and relatively open yet secluded concentration camps operated by the Nazis during World War II, the detention centers of Argentina’s junta were small and hidden, but in locations that people went by every single day.
Pablo Yadarola, the Secretary to Judge Sergio Torres, was the last panelist on Day1. He noted that the Argentinean process, unlike any other one designed to dispense justice in the wake of atrocities, required no special laws, no special courts, not even a special budget or additional personnel (though eventually more funding was necessary). He also noted the unique challenge of persuading victims to testify when their trust in the state—and the courts—had been destroyed.
Day 2 of the conference opened with Judge Eduardo Freiler, an investigative prosecutor, who spoke of the painstaking yet rewarding work of meeting with witnesses in cafés repeatedly over time, until they trusted the prosecutors enough to take the stand and testify. He also pointed out the integral role the current trials play in his country, citing the work of philosopher Jean-Jacques Rousseau and stating that “Human rights cases are part of the social contract of Argentina.”
Next came an impassioned presentation by Judge Carlos Rozanski, including footage of witnesses testifying in his court, onlookers’ reactions, and the chilling response of a convicted torturer: “You are not convicting us; you are convicting yourselves.” The day after the trial, the witness who had testified against him went missing and has yet to be found. Rozanski placed the Argentinean experience in the context of a “culture of death” throughout Latin America, whose aim was “not to exchange good things but to exchange death.” He traced this to the School of the Americas, a U.S. Defense Department facility at Fort Benning in Georgia that trained Latin American soldiers and police, some of whom went on to commit serious human rights violations.
Closing the conference for the Argentineans was, again, Judge Daniel Rafecas, who addressed the question of whether or not the Dirty War could be called genocide. Recalling the definition of genocide as laid out in the United Nations convention , and noting that the crimes of the military dictatorship had already been defined as crimes against humanity, he said that, in strictly judicial terms, he did not believe it was accurate to call the Dirty War genocide.
In a more personal vein, Rafecas went on to describe the crimes of the junta as “supra-Kafkan” or “beyond Kafka,” pointing out the difficulty of emotional response due to the “loss of empathy” and “desensitization to justice” that took place in 1970s and 1980s Argentina. The solution, on the individual level, he said, was for humans to be “raised in a culture of love and compassion.”
The final panel of the conference was forward-looking. In a panel moderated by AIPR Executive DirectorTibi Galis , psychology professor James Waller , law professor Sheri Rosenberg , and UN Special Adviser on the Prevention of Genocide Francis Deng considered the lessons of Argentina for the prevention of genocide today.
Prof. James Waller, who also serves as the Auschwitz Institute’s Affiliated Scholar , described three “arenas” of genocide prevention: policymakers; military personnel; and education for citizen-activists. Noting both his work with perpetrators of genocide and his personal relationships with survivors, Waller said prevention is important because it honors the memories of victims; it lessens the impact of the loss, which stays with society; and even if not prevented, if genocidal killing is stopped, the life of the person whose loved ones are saved “would be whole.” Finally, he identified three phases of preventing genocide: 1) inoculation of individuals and society; 2) intervention (during killing); and 3) reconstruction and reconciliation.
Prof. Sheri Rosenberg, a regular instructor at the Auschwitz Institute’s seminars on genocide prevention for government officials, focused on the “evolving political norm” of the Responsibility to Protect , or R2P. Though not yet a legal norm, Rosenberg pointed out that R2P, with its assertion of a collective right to intervene in a state’s internal affairs when that state is committing genocide, war crimes, crimes against humanity, or ethnic cleansing against its own citizens, counters the idea of “law as a shield instead of a sword.”
In his remarks, titled “Bridging the Gap Between Idealism and Realism,” Francis Deng noted that the United Nations, despite its name, is an organization of divided nations, with member states divided into in-groups and out-groups. Deng said his work at the UN began with internally displaced persons, or IDPs, and it was his efforts to persuade state leaders to allow in outside help that led him to the idea of “sovereignty as responsibility.” This “soft approach to human rights,” as Deng calls it, made it possible for him (and by extension the international community as a whole) to invoke “sovereignty as a positiveresponsibility,” instead of a way to deflect criticism, as it was used throughout the Cold War. In his current work, Deng said he and his staff have developed a framework of eight categories of risk factors for genocide, among them elections (“always a trigger”). He said they consider it useful to view the problem as one of “gross mismanagement of diversity,” with genocide as “an extreme form of identity-related conflict.”
Processes of Justice: The Argentine Experience was held Oct. 7 and 8, 2010, at the Museum of Jewish Heritage in Manhattan, co-organized by the Auschwitz Institute for Peace and Reconciliation (AIPR) and Argentina’s Ministry of Justice and Human Rights .
Thursday, Oct. 7
- Session I: The Argentine Process: A Historical Account
- Andrea Gualde , Director, Legal Affairs, Secretariat of Human Rights; Eduardo Duhalde , Secretary for Human Rights; Luis Alen , Undersecretary for Human Rights
- Session II: The Investigation of Crimes Committed Under State Terrorism
- Andrea Gualde , Director, Legal Affairs, Secretariat of Human Rights; Eduardo Duhalde , Secretary for Human Rights; Luis Alen , Undersecretary for Human Rights
- Session III: The Prosecution of State Terrorism
- Sergio Torres , Judge, Federal Criminal Court; Daniel Rafecas , Judge, Federal Criminal Court; Pablo Yadarola , Secretary to Judge Torres
- Session IV: Legal Characterization of the Crimes
- Carlos Rozanski , Judge, Federal Criminal Court; Daniel Rafecas , Judge, Federal Criminal Court;Eduardo Freiler , Judge, Federal Court of Appeals
- Session V: Genocide Prevention Today
- Tibi Galis , Executive Director, Auschwitz Institute for Peace and Reconciliation; James Waller , Cohen Chair of Holocaust and Genocide Studies, Keene State College; Sheri Rosenberg , Director, Program in Holocaust and Human Rights Studies, and Director, Human Rights and Genocide Clinic, Cardozo School of Law, Yeshiva University; Francis Deng , UN Special Adviser on the Prevention of Genocide