The Valuable Interplay of Domestic and International Law in Argentina’s Human Rights Struggle

By Jonas Konefal 25′

This article traces the development of Argentine human right initiatives as the country transitioned from dictatorship to democracy, with a consideration of the relationship between domestic and international human rights law. When domestic political contexts did not allow justice, Argentine politicians and lawyers were innovative in their utilization of international norms and legal frameworks to pursue accountability for the dictatorship’s human rights violations, with important effects.

The Early Dictatorship (1976-1980)

On March 24, 1976, amid an unstable government and revolutionary violence, the Argentine military orchestrated a coup. The new junta announced a “National Reorganization Process” which sought to return the country to its purported western, Christian roots and eliminate elements of sedition. Under de facto President Jorge Rafael Videla, the junta escalated repression of perceived enemies of the state to a degree unprecedented in Argentine history, attacking students, intellectuals, and political activists with the same ferocity they meted out to small groups of armed revolutionaries. Right-wing violence was state policy, carried out by the armed forces. The regime coordinated a system of clandestine detention centers, where victims were tortured to extract names and information, yielding more targets to pursue. If torture did not kill the victims, the military would often use some other means to end their lives. Most famously, they sedated captives, took them on board a plane over the Río de la Plata, and dropped them thousands of feet down to the water in acts known as “death flights.” Civilian families loyal to the military government secretly adopted the children of women who gave birth in captivity and falsified their identities, often raising them without ever telling them of their parentage.1 They saw removing children from “subversive” influences as a benevolent act. Various human rights organizations estimate that the Argentine security forces “disappeared” around 30,000 Argentinians during this period. Though many bodies have been identified through extensive forensic anthropology efforts, many of these people remain missing. These people became known as desaparecidos—“those who were disappeared.”

The Argentine military government’s actions flew in the face of international human rights agreements that Argentina had signed. The international human rights framework was weak in the 70s, so the idea of punishment seemed remote, as the most recent international trials had been carried out by the Allied Powers around thirty years earlier in Nuremberg and Tokyo.2 Lack of an applicable legal framework, however, did not mean that human rights groups were not pursuing justice. The Mothers of the Plaza de Mayo, a resistance group formed by the mothers of desaparecidos, reached out to international human rights organizations. Because the military dictatorship used the traditional family as a key image in their conception of societal reform, the Madres had a certain degree of immunity from repression. They received the Inter-American Commission for Human Rights (IACHR) in Argentina in 1979, shortly after it had hosted the World Cup. In 1980, the IACHR issued a report detailing Argentina’s human rights violations and calling for the trial of junta officials.3

The Dictatorship’s Fall (1980-1983)

The report came at an unfortunate time for the dictatorship. Since its inception, the junta had expressed its intent to return the country to civilian rule, which it began to plan after 1978. Scrutiny of the junta’s human rights record during the moment of this transition would jeopardize the military’s power under democracy.4 The IACHR report, along with other events, brought rights issues into the national conversation more than the junta would have liked.5 The military’s weakening power was also revealed when General Galtieri ousted General Viola, who was succeeding Videla, in a coup. To escape the uncomfortable scrutiny it was under, the junta declared war on the United Kingdom for the Falklands (in Argentina, the Malvinas Islands). Somewhat unexpectedly, the United Kingdom responded with force, and Argentina suffered a humiliating defeat in the Malvinas War.

The Alfonsín Era Human Rights Progress (1983-1987)

Argentina’s military defeat in the Malvinas set the stage for the election of civilian president Raúl Alfonsín in 1983. Alfonsín ran for president with the Radical Civic Union (UCR) on a platform of human rights and proposed a domestic reform package that included laws aiming to prevent further human rights abuses and prosecute military officials for past crimes.6 On December 13, Alfonsín issued an executive order recognizing both the illegality and inhumanity of the junta’s actions during the dictatorship, calling for prosecution against them.

In the 1985 Trial of the Juntas, state prosecutors secured the conviction of several of the previous government’s most heavily implicated officials, who as heads of state had violated Argentina’s criminal code. Alfonsín also established the National Commission on the Disappearance of Persons, a truth commission which issued a report recognizing the abduction, disappearance, and torture of thousands of Argentinians. Argentina also took this moment to strengthen its ties with the international human rights community. In 1984, Argentina ratified the American Convention on Human Rights. In 1987, Argentina ratified the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civic and Political Rights (ICCPR), both of which it had signed, almost two decades earlier, in 1968.

Nine former junta military leaders went to trial, all of them high-ranking officials implicated in the most serious abuses of the dictatorship. The scope of evidence made public during the trials was massive, and the Argentine media was flooded with graphic and detailed descriptions of abuses. In calling for trials, Alfonsín envisioned a controlled political maneuver that would not destabilize the delicate post-dictatorship balance of power. However, they escalated into extensive prosecutions that fully exposed the perverse crimes of the dictatorship. As two scholars describe it, the trials were out of Alfonsín’s hands—“a juridical logic achieved primacy over the political logic that had previously governed the debate over Argentina’s past.”7 Evidence was compiled to destroy the false image that the dictatorship had created of itself. The trial was simultaneously a prosecution and a truth commission.

Part of the importance of early accountability efforts in general lies in their role in establishing memory itself. Following the fall of the dictatorship, human rights groups such as the Permanent Assembly for Human Rights (ADPH) drew on victim testimonies and NGO archives to build an incomplete picture of the dictatorship’s human rights violations.8 Still, establishing these early truths facilitated later efforts. Additionally, the juntas’ own defense lawyers often corroborated the atrocities committed in an effort to undermine witness testimony. For example, counsel used the fact that victims were often blindfolded to claim their testimonies were unreliable, inadvertently conceding that victims were blindfolded in the first place.9 This further contributed to constructing a collective memory and condemning the dictatorship’s human rights abuses.

The Alfonsín Era Human Rights Losses (1987-1989)

Unfortunately, the window for justice soon closed. After the 1985 Trial of the Juntas, the Alfonsín administration acquiesced to pressures for an end to prosecutions and pursued a policy of amnesty. The threat of military coup in that moment was very real, and many feared that going too far in prosecution could cost Argentina its democracy. In 1986, because of these pressures, the legislature passed the Full Stop law, bringing an end to all trials for crimes committed by the dictatorship’s upper-level officers. Lower-level officials were left unprotected, and, in protest, they staged a series of military revolts in the capital. These became known as the Carapintada (painted-face) uprisings. After these revolts, the government passed the Due Obedience law, which forbade the prosecution of crimes committed by military personnel following orders. These were massive losses for the Argentine human rights movement.

The Menem Years (1989-1999)

Whatever concessions Alfonsín made to the military, these were topped by Carlos Menem, who succeeded him. Menem further frustrated human rights efforts by pardoning the top-level military officials who had been sentenced in the Trial of the Juntas. In this difficult environment, human rights initiatives could be pursued by applying international law in Argentina. In the 1992 case Ekmekdijan v. Sofovich, the Supreme Court allowed international treaty law to apply in Argentina. The suit pleaded the “right to reply,” a right guaranteed in the American Convention on Human Rights, which the country had ratified in 1984. By citing the Vienna Convention, which Argentina had also ratified, the Court ruled that the right to reply was applicable and superior to domestic law in Argentina. This legal logic could be applied to all other rights included in international agreements signed by Argentina.10 Despite this new opening for human rights law, however, it was hard to expect a progressive human rights Court in Menem’s Argentina.11

Fortunately, the Ekmekdijan case served as a foot in the door, which was enough to bring about more substantive change. In 1994, Menem and Alfonsín, still politically active with the UCR negotiated the Olivos Pact, an agreement between legislators for constitutional reform. The new constitution recognized the legal validity of the Genocide Convention, the ICESCR, and the ICCPR.12 According to Art. 75, Sec. 22, these provisions have the same legal status as the Argentine constitution itself.13 This gave a constitutional basis to the Ekmekjidan ruling that international treaty laws were applicable in Argentina.

Human rights groups, now with a constitution to support their cause, continued to take successful legal action. In the mid-nineties, the legal team of the Grandmothers of the Plaza de Mayo, a human rights group inspired by the Mothers of the Plaza de Mayo, pursued a series of lower-level cases that prosecuted the crimes of kidnapping minors and changing their identities. These specific offenses had not been covered in Alfonsín’s amnesty laws. In 1998, Argentine federal judges ordered the detention of former heads-of-state Videla and Massera on these charges.14

After Menem (1999-Present)

Menem was succeeded by the UCR’s Fernando de la Rúa in 1999, aiding further human rights developments. In 2000, building on the precedent of the Grandmothers’ child kidnapping cases, the Center for Legal and Social Studies filed a suit disputing the constitutionality of the Due Obedience and Full Stop laws. They based part of their argument on international treaty law’s legal weight under the 1994 constitution. In March 2001, a federal judge ruled to sustain their argument, declaring the Full Stop and Due Obedience laws unconstitutional and thus null and void.15 To seal this victory, Nestor Kirchner’s national legislature annulled the laws in 2003.

After this point, human rights trials could proceed without legal barriers or amnesty. Still, it must be noted that at no point did the military endorse these trials, and violent intimidation tactics continued. Most egregiously, military-aligned groups are suspected of kidnapping Jorge Julio López, a victim of the dictatorship, just hours before his final testimony in a case against Miguel Etchecolatz, an official in the Buenos Aires Provincial Police during the dictatorship.

Conclusion: International Law in Argentina

Tracing this history of human rights accountability, we can evaluate how international law enabled domestic accountability efforts in Argentina. In the modern day, scholars argue that international law’s potential enforcement via the International Criminal Court (ICC) can be used to spur domestic prosecutions. In Argentina’s case, the ICC had not been founded at the time of the first human rights trials in 1985, and there was only a meager international legal framework to try human rights violators. However, under the rule of Argentina’s dictatorship, appeal to international organizations was the only feasible means of achieving human rights progress. The IACHR report from 1980 represented the most serious international condemnations of the dictatorship. When Argentina returned to democracy in 1983, a human-rights-friendly political context allowed it to leverage domestic legal mechanisms to prosecute the dictatorship’s highest-level offenders. However, this political context was short-lived, as both Alfonsín and Menem pursued amnesty policies.

But again, in the nineties, human rights efforts in Argentina could draw on international legal frameworks to promote domestic accountability efforts, and this time they had far more to work with. Various international criminal tribunals were held worldwide in the nineties and Spanish lawyers pursued cases against Argentines under universal jurisdiction. International human rights law now had precedent. Argentine lawyers used these tools to further prosecutions, and then in 1994, through the incorporation of international human rights conventions into the constitution international human rights law had legal force in Argentina. Kathryn Sikkink argues that Argentines were innovators in this field. As she writes, “Argentine human rights activists were (…) instigators of multiple new human rights tactics and transitional justice mechanisms.”16 Implementation of international law in the country allowed human rights progress even at times when presidents and domestic laws stood in the way of human rights justice. As a valuable side effect, a robust human rights consciousness was built along the way.

  1. Kathryn Sikkink, “From Pariah State to Global Protagonist: Argentina and the Struggle for International Human Rights,” Latin American Politics and Society 50, no. 1 (2008): 4. ↩︎
  2. Sikkink, “From Pariah State to Global Protagonist,” 3. ↩︎
  3. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Argentina (1980), https://cidh.oas.org/countryrep/argentina80eng/toc.htm. ↩︎
  4. Acuña and Smulovitz, “Guarding the Guardians in Argentina,” 99-100. ↩︎
  5. Comisión por la Memoria, National Security Archive, and Silvia Tandeciarz, “Los informes de la diplomacia estadounidense sobre el Nobel de la Paz de Adolfo Pérez Esquivel,” https://www.comisionporlamemoria.org/project/40-anos-del-premio-nobel-de-la-paz-a-adolfo-perez-esquivel/ ↩︎
  6. Santiago Nino, Radical Evil on Trial, 69. ↩︎
  7. Acuña and Smulovitz, “Guarding the Guardians in Argentina,” 105. ↩︎
  8. Barbuto, “Strengthening Democracy,” 43. ↩︎
  9. Susana Kaiser, “Argentina’s Trials: New Ways of Writing Memory,” Latin American Perspectives 42, no. 3 (2015): 200. ↩︎
  10. Ekmekdjian Miguel A.c. Sofovich, Gerardo Y Ot. https://www.perio.unlp.edu.ar/catedras/wp-content/uploads/sites/138/2020/05/fallo_ekmekdjian_miguel_a._c._sofovich_gerardo_y_ot._corte_suprema_de_justicia_de_la_nacion._1992.pdf. ↩︎
  11. Leon Patricios, “Ekmekjidan v. Sofovich:The Argentine Supreme Court Limits Freedom of the Press,” University of Miami Inter-American Law Review 24 (1993): 542. ↩︎
  12. Brinks and Blass, The DNA of Constitutional Justice in Latin America, 135-136. ↩︎
  13. Art. 75, Sec. 22, Argentina Constitution. ↩︎
  14. Sikkink, “From Pariah State to Global Protagonist,” 12. ↩︎
  15. Ian D. Seiderman, ed. Center for the Independence of Judges and Lawyers of the International Commission of Jurists, “Argentina,” Attacks on Justice: A Global Report on the Independence of Judges and Lawyers 11 (2002): 27-28. ↩︎
  16. Sikkink, “From Pariah State to Global Protagonist,” 1. ↩︎

Bibliography

Breau, Susan. The Responsibility to Protect in International Law: An Emerging Paradigm Shift. New York: Routledge, 2016.

Brinks, Daniel M. and Abby Blass. The DNA of Constitutional Justice in Latin America: Politics, Governance, and Judicial Design. New York: Cambridge University Press, 2018.

Collins, Cath. Post-Transitional Justice: Human Rights Trials in Chile and El Salvador. University Park: The Pennsylvania State University Press, 2010.

La Comisión por la Memoria, National Security Archive, and Silvia Tandeciarz. “Los informes de la diplomacia estadounidense sobre el Nobel de la Paz de Adolfo Pérez Esquivel.” https://www.comisionporlamemoria.org/project/40-anos-del-premio-nobel-de-la-paz-a-adolfo-perez-esquivel/.

Ellis, Mark S. Sovereignty and Justice: Balancing the Principle of Complementarity between International and Domestic War Crimes Tribunals. Newcastle upon Tyne: Cambridge Scholars Publishing, 2014.

Hamre, John H. and Gordon R. Sullivan. “Toward Postconflict Reconstruction.” The Washington Quarterly 25, no. 4 (2002): 85-96.

Inter-American Commission on Human Rights. Report on the Situation of Human Rights in Argentina, 1980. https://cidh.oas.org/countryrep/argentina80eng/toc.htm.

Kaiser, Susana. “Argentina’s Trials: New Ways of Writing Memory.” Latin American Perspectives 42, no. 3 (2015): 193-206.

Mayer-Rieckh, Alexander and Pablo de Greiff, ed. Justice as Prevention: Vetting Public Employees in Transitional Societies. New York: Social Science Research Council, 2007.

McAdams, A. James, ed. Transitional Justice and the Rule of Law in New Democracies. New York: University of Notre Dame Press, 1997.

Oswald, Bruce M. “Model Codes for Criminal Justice and Peace Operations: Some Legal Issues.” Journal of Conflict Law and Security 9, no. 2 (2004): 253-275.

Patricios, Leon. “Ekmekjidan v. Sofovich: The Argentine Supreme Court Limits Freedom of the Press.” University of Miami Inter-American Law Review 24 (1993): 541-565.

Roht-Ariaza, Naomi. The Pinochet Effect: Transnational Justice in the Age of Human Rights. Philadelphia: University of Pennsylvania Press, 2006.

Santiago Nino, Carlos. Radical Evil on Trial. New Haven: Yale University Press, 1996.

Saunders, Rebecca. “Questionable Associations: The Role of Forgiveness in Transitional Justice.” The International Journal of Transitional Justice 5 (2011): 119-141.

Seiderman, Ian D, ed. Center for the Independence of Judges and Lawyers of the International Commission of Jurists. “Argentina.” Attacks on Justice: A Global Report on the Independence of Judges and Lawyers 11 (2002): 23-41.

Sikkink, Kathryn. “From Pariah State to Global Protagonist: Argentina and the Struggle for International Human Rights.” Latin American Politics and Society 50, no. 1 (2008): 1-29. Stromseth, Jane, David Wippman, and Rosa Brooks. Can Might Make Rights?: Building the Rule of Law After Military Interventions. New York: Cambridge University Press, 2006.