Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (58 page)

Perhaps the most challenging of the legal battles was the case led
by CELS to have the amnesty laws declared null, or unconstitutional. Once again, using the case of a kidnapped child of the disappeared, CELS
argued that the amnesty laws put the Argentine judicial system in the untenable position of being able to find people criminally responsible for kidnapping a child and falsely changing her identity (more minor crimes) but not for the more serious original crime of
murder and disappearance of the parents that later gave rise to the crime of kidnapping. Additionally, they argued that the amnesty laws were a violation of international and regional human rights treaties to which Argentina was party, and which were directly incorporated into Argentine law. CELS solicited international groups to write amicus briefs for their cases, and succeeded in establishing for the first time in the Argentine judicial system the practice of using foreign amicus
briefs.

A judge of the first instance found the arguments compelling, and wrote a judgment that was a lengthy treatise on the significance of international human rights law in Argentine criminal law.
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Argentina offered a propitious environment for this kind of decision because the 1994 Constitution gave international human rights treaties constitutional status, and because the courts had earlier found that
customary international law could be applied by domestic courts. The Appeals courts supported the decision, but it seemed unlikely that the Supreme Court would follow suit. However, the new President of Argentina,
Nestor Kirchner, changed both the composition of the Supreme Court and the political climate for the idea of accountability for past human rights violations. Specifically, Kirchner placed three new judges on the Supreme Court, including Raúl Zaffaroni, a noted legal theorist and expert on criminal law, and Carmen Argibay, a judge on the Ad Hoc Tribunal for the former Yugoslavia. In June 2005 the Supreme Court found the amnesty laws unlawful by a 7–1 vote.
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The effect of this law was to permit the reopening of the human rights cases that had been closed for the past fifteen years.

Other actions of the executive and legislature have moved in the same direction. In 2003, Kirchner announced that he was revoking the decree of the De La Rua government that denied all
extradition requests, and was returning the decision about extradition back to the control of the judiciary.
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Although no individual has yet been extradited from Argentina to stand trial abroad, Kirchner's announcement signaled a return to a more activist human rights policy on the part of the executive. In August 2003, the Argentine Congress, with the support of the Kirchner administration, passed a law that declared the amnesty laws (
obediencia debida y punto final
) null and void. According to observers, this was an unexpected political and legal development.
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Human rights advocates in Argentina had been working for years to get the amnesty law repealed, annulled, or declared unconstitutional.
But it was not until they found greater support from the executive branch that they were able to secure their goal. The political history and orientation of President Kirchner himself and some of his top advisors helps explain this change in executive branch policy. Kirchner is the first president of Argentina to come from the generation most affected by the dictatorship's practice of
disappearances. Although he himself did not suffer from repression, Kirchner was a member of the 1970s generation of the Peronist party that was decimated by the repressive apparatus. This generational tone has affected all of his government's policies, but has been most pronounced in the area of human rights.
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Although Kirchner's move to have the amnesty laws declared null was mainly the result of his political orientation and that of his closest advisors, it also took place in the context of the international legal opportunity structure discussed above. Just days before the Congress passed the law declaring the amnesty laws null, Judge Canicoba Corral, following the government's new policy on extraditions, had provided for the
extradition to Spain of 45 members of the military and one civilian, requested by Judge Garzón. This provided some impetus for reopening domestic trials.

The Kirchner government was also aware of how to use international law as a vehicle to provide support for its chosen policy alternative. The day before the Congressional debate on the law to declare the amnesty laws null, the Kirchner government signed a decree implementing the “Convention on the Non‐Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.” In addition to declaring that no statutory limitation shall apply to war crimes and crimes against humanity, the Convention obligates governments to punish these crimes and to adopt all necessary measures to make extradition possible, irrespective of the date the crimes were committed.
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The Convention essentially prohibits amnesties for these crimes. The Convention entered into force in 1970. The Argentine Congress ratified the Convention in 1995, but the executive had never deposited the ratification instrument. By its decree, the Kirchner government ensured that the treaty would enter into effect in Argentina, and at the same time, it sent to Congress a law that would give the norm constitutional status. Through this move, the government provided additional incentives to the Congress to annul the amnesty laws, but it also provided additional reasons why the amnesty laws should be seen as contrary to international law and to the Argentine constitution. In this we have the case of the government explicitly creating international opportunity structures to support its
domestic political moves.

But while pursuing these domestic judicial and political strategies, Argentine activists did not neglect the international realm. Once a case
against members of the Argentine military was initiated in the Spanish Audiencia Nacional in 1996, many Argentine family members of the
disappeared traveled to Spain to present testimony and to add their cases. Argentine human rights organizations cooperated actively with requests from the Spanish courts and from human rights organizations based in Spain to provide documentation and case material.

One of the most surprising developments came in 2001 when the Mexican government agreed to extradite an Argentine national living in Mexico, Ricardo Miguel
Cavallo, to the Audiencia Nacional of Spain, to stand trial for human rights violations he is accused of committing in Argentina during the dictatorship. This is the first case where one country
extradited a national of another country to stand trial in yet a third country for human rights abuses committed in his
country of origin. The Argentine government did not oppose Cavallo's extradition to Spain, nor did it submit its own extradition request. In other words, Cavallo is the minor official now following the path that Pinochet could have followed, had the Chilean government not secured his return to Chile.
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Meanwhile, another minor Navy officer, Adolfo Scilingo, was tried and convicted in Spain in early 2005 for his role in murdering prisoners, France continues to request the extradition of Alfredo Astiz, and Germany has issued extradition requests for Argentines accused of human rights violations during the dictatorship.

The Grandmothers of the
Plaza de Mayo also pursued an
insider–outsider coalition strategy. During the international process of drafting the Convention on the
Rights of the Child, the Grandmothers lobbied the Argentine government to include specific provisions in the Convention that they believed would enhance the success of their domestic trials. Specifically, they realized that domestic law did not provide a legal basis for arguing that the kidnapped children had standing in court. So the Grandmothers convinced the Argentine foreign ministry to press for provisions on the “right to identity” in the Convention on the Rights of the Child. In the final Convention they are included as Articles 7 and 8 and are informally called the “Argentine Articles”. Because the Argentine constitution incorporates international law directly into domestic law, once Argentina had ratified the Convention, these Articles provided the Grandmothers with the legal basis to argue that children had a right to identity, and thus to permit judges to order blood tests even when opposed by the adoptive parents, to establish whether or not the
children were the sons and daughters of the disappeared.
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In this case, the Grandmothers of the Plaza de Mayo, a domestic Argentine human rights movement, helped to change international opportunity structure by changing the wording of a treaty, and that in turn
changed their
domestic opportunity structure and made it easier to get convictions.

In other words, domestic groups concentrated primarily on their very active domestic judicial agenda, but they moved with relative ease and fluidity, in foreign, international, and regional institutions as a complement and/or back‐up to their domestic work. International and regional activism remains one of the tactics in the repertoires of these groups. At times it is more latent than others, but always there. But it is not a privileged sphere, largely because there has been so much domestic space in which to participate.

The Argentine case also illustrates a point frequently made by social movement theorists that
political opportunities are not only perceived and taken advantage of, but are also created by social actors. Argentine political actors faced a more open political opportunity structure for their human rights demands after the transition to democracy in part because the failure of the military in the Malvinas/Falklands War led to an abrupt transition where the military had little bargaining power. This is in contrast to the situation in Chile or
Uruguay, where negotiated transitions gave the military more veto power and more control over the agenda. And yet, the tactics groups chose also made a difference. Argentine activists have been unusually active and innovative in this field and have often pursued legal strategies in the face of political opposition.

These social movements and legal strategies are so extensive that we consider Argentine social movement activists, and at times, even members of the Argentine government to be among the most innovative protagonists in the area of domestic human rights. They are not emulating tactics they discovered elsewhere, but are developing new tactics. On a number of occasions, they have then exported or diffused their institutional and tactical innovations abroad. Argentina, which never was a passive recipient of international human rights action, has gone on to become an important international protagonist in the human rights realm, involved in actively modifying the international structure of
political opportunities for human rights activism. For example, Argentina was one of the four or five most active countries in the development of the International Criminal Court, and an Argentine attorney and former deputy prosecutor of the Junta Trials, has been named the new prosecutor for the
ICC, perhaps the most important position in the Court.
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This dynamism of the Argentine human rights sector is even more interesting and important in the context of active US hegemonic opposition to the expansion of international human rights law, because it suggests that the advancement of human rights institutions may proceed even in the face of opposition from the United States.

It has now been over twenty years since the transition to democracy in Argentina. We argue that Argentina is more than just another case in a volume on transitional justice. Argentina helped innovate the two main accountability mechanisms that are the topic of this book. Though the actual process of diffusion from Argentina to other countries is not always clear, the Argentine example was very influential for other experiences of transitional justice. The Argentine model suggested that accountability mechanisms like truth commissions and trials need not be mutually exclusive options, but can be beneficially combined. Indeed, Argentina has innovated a type of trial – the truth trial – that actually combines elements of trials and truth commissions. With the recent reopening of blocked human rights trials, however, the pressure for truth trials is likely to decline. The case of Argentina today suggests that it is in the process of innovating yet another mechanism – legislative and judicial strategies for declaring amnesty laws null and void, and permitting blocked human rights trials to proceed. Other countries are beginning to follow suit, as evidenced by efforts underway today in Chile and Uruguay to find judicial strategies to evade amnesty laws. The trends in transitional justice over the last twenty years suggest that Argentina is not an exceptional case or an outlier, but just ahead of its time, and thus a good way to get a glimpse of the future.