The Future of Democracy

1.   INTRODUCTION

With the fall of the military regime and the return to democracy in 1983, most Argentines who had lost family and friends between 1975 and 1983 (the period known as the "Dirty War") assumed that the military's day of reckoning was near. However, the military were reluctant to admit to any wrongdoing and to this day continue to defend or excuse their actions by insisting that they had "defended the nation against subversive aggression" (Latin American Regional Reports: Southern Cone Report 7 Feb. 1991).

Soon after being inaugurated as president in December 1983, Raúl Alfonsín, leader of the Unión Cívica Radical (UCR), instituted the "National Commission on Disappeared Persons" (CONADEP) with a mandate to investigate the fate and whereabouts of the disappeared (Americas Watch 1991, 14). In its report of September 1984, CONADEP listed at least 8,960 desaparecidos (disappeared persons) under the 1976-1983 military regimes. CONADEP specified in the same report that its estimate of the number of victims was actually much higher but that it had no documented evidence because many families had not come forward with information on disappearances (Ibid., 17).

Alfonsín's foremost task was twofold, although the objectives were intrinsically linked: first, to achieve political and economic stability in order to preserve and promote democracy and second, to hold accountable those guilty of human rights abuses.

2.      PAST HUMAN RIGHTS VIOLATORS

2.1              The Punto Final and Obediencia Debida Laws

Three days after being sworn in, President Alfonsín, who had been elected on a human rights platform, made world headlines by ordering the investigation and prosecution of those who had committed human rights violations either as "direct or indirect authors, instigators or accessories," during the period from 1976 to 1983 (Human Rights Quarterly Feb. 1990, 20). This resulted in the conviction and sentencing of five former commanders-in-chief, two of whom were ex-presidents, as well as the filing of about 1,700 prosecutions against almost "500 members of the military and security forces responsible for ordering and performing abductions, assassinations, torture, and other crimes of the `war against subversion'" (Ibid., 18, 20).

Alfonsín also introduced "legislation raising the penalties for torture, and making it a crime to take over the government by force of arms." He facilitated and made mandatory the prosecution of organizers of military rebellions and coups (Americas Watch 1991, 13).

In the midst of growing tension within the military, Alfonsín submitted two successive far-reaching bills to the Congress. On 22 December 1986, Law No. 23492, the Punto Final (Final Stop) Law became effective. This law stated that "no new criminal complaints could be brought against anyone for crimes committed during the war against subversion after the expiration of a 60-day term following enactment" (Americas Watch 1991, 48). The law also provided that all previously filed complaints "would be considered moot unless the courts had heard the defendants or attempted to hear them" (Ibid.). At the time of the 22 February 1987 deadline, about 300 complaints had been registered (Human Rights Quarterly Feb. 1990, 25). Ideler Tonelli, at the time Under Secretary of Justice, declared that under the Punto Final Law "after February 22, 1987, those not charged were `innocents forever'" (Americas Watch 1991, 49).

The law did not cover theft and irregular adoption of the children of the disappeared. According to CONADEP, close to 180 children were still missing in 1991. Some of these children had been taken from their mothers and subsequently adopted or sold by their abductors (Ibid., 43, 44).

The Punto Final Law was not well received by even prominent leaders of Alfonsín's UCR party, but most were eventually convinced to defend it. "Though President Alfonsín continued to insist that there were no military pressures, the final argument presented in favour of the passage was raison d'état, the need to preserve democracy" (Ibid., 47).

The Punto Final deadline, possibly meant to ease the tension between the government and the military, apparently did little to achieve its desired effect. A group of soldiers, led by Lieutenant Colonel Aldo Rico, rebelled during Easter Holy Week in 1987 and took over a military compound in Cordoba, demanding a general amnesty for all who faced human rights abuse charges and the dismissal of all generals on active duty (Human Rights Quarterly Feb. 1990, 26). Although no amnesty was granted, the commander-in-chief of the armed forces was dismissed and the majority of the army's generals retired (Americas Watch 1991, 50).

Following this rebellion, known as the Semana Santa revolt, the government proposed Law No. 23521, the Obediencia Debida Law (Due Obedience Law), which was enacted on 5 June 1987 (Ibid.).

The due obedience law creates a conclusive presumption that low- and middle-ranking officers, as well as most officers of higher rank, acted under superior orders and duress and therefore may not be prosecuted for human rights abuses (Human Rights Quarterly Feb. 1990, 27).

The law covered all military personnel except those "who were chiefs of security areas, or chiefs of security sub-areas, or chiefs of security forces, such as the police of a province or the Federal Police" (Americas Watch 1991, 51).

The crimes covered by the Due Obedience Law included torture, murder, arbitrary arrest and misrepresentation (Human Rights Quarterly Feb. 1990, 28). However, according to Article 2 of the law, the "due obedience" defence was not available for the crimes of rape, theft, kidnapping of minors, falsification of the minors' civil status, nor for those responsible for giving the children of the disappeared to other families (Ibid.). Although these crimes were "repeated on countless occasions, [they] were not deemed to have been included in the orders of the high command, as were torture, murder and illegal arrest" (Americas Watch 1991, 44). The direct consequence of this law was that "out of some 370 members of the armed forces due to be tried for human rights offenses, only between 30 and 50 were expected to face charges" (South America, Central America and the Caribbean 1991 1990, 54).

2.2            Menem's Presidential Pardons

The inauguration as president in July 1989 of Peronist Carlos Saúl Menem, of the Partido Justicialista, marked the first time since 1928 that an elected president democratically succeeded another without military involvement (Ibid.). As a former prominent leader of the opposition, Menem had harshly criticized Alfonsín's Punto Final and Due Obedience laws, insisting on full accountability for past human rights abuse crimes (Americas Watch 1991, 65).

Once in power, however, Menem's past criticism of Alfonsín appeared to be little more than rhetoric, as he effectively ended the process of accountability for human rights abuses "by issuing presidential pardons for all those whose prosecutions or convictions had been left standing after passage of the Due Obedience and Punto Final laws" (Ibid.). The first series of pardons was issued on 6 October 1989. Decrees 1002 and 1003 pardoned 103 persons, of whom 39 were "military officers of the rank of general and admiral awaiting trial for alleged crimes of human rights violations" (Amnesty International, AI Index: AMR 13/05/90, 8). Decree 1002 did not include high officials who had already been convicted, but did preempt "any further investigation or prosecution of thirty or more high-ranking officers who had not been covered by the previous laws" (Americas Watch 1991, 65).

On 29 December 1990, in the name of "national reconciliation" and in order to "close a chapter," President Menem issued 12 pardons which included former Presidents Videla and Viola, as well as six other military leaders convicted of human rights violations. Among those pardoned was Colonel Ramón Camps, who had been accused of "214 extortionist kidnappings, 120 cases of torture, 32 homicides, 2 rapes, 2 abortions resulting from torture, 18 thefts and the kidnappings of 10 minors who disappeared" (The New York Times 5 Jan. 1991, 21; Latin American Regional Reports: Southern Cone Report 7 Feb. 1991, 1). This "pacification" attempt did little more than alienate opposition leaders, human rights organizations, and tens of thousands of Argentines who mounted numerous protest rallies across the country. The pardoned generals remained unrepentant, demanding nothing less than a "full institutional vindication" (Latin American Regional Reports: Southern Cone Report 7 Feb. 1991, 1).

Those who openly opposed the military during the "Dirty War" were usually eliminated or had to seek refuge abroad. Upon the return of democracy, many Argentines repatriated and testified against the military, believing that they could count on an independent justice system. This was not always the case. Graciela Daleo, a survivor of a concentration camp run by the navy, returned to Argentina after living in exile to testify against her torturers. However, "each time she offered new testimony, new charges would be brought against her for crimes allegedly committed during the 1970s..." (Americas Watch 1991, 66, 67). Although not guilty of any crimes, Daleo was pardoned in October 1989, but she protested the pardon as a matter of principle and demanded a declaration of innocence. The Supreme Court refused her demand and in November 1990 ordered new charges against Graciela Daleo.

Because of this turn of events, those who masterminded the massive disappearances and killings of recent Argentine history are free, and a human rights monitor who has insisted in denouncing them is the only person now facing prosecution (Ibid.).

Menem's inconsistency in dealing with the armed forces has also left many perplexed. Following a revolt in early December 1990, Menem called for harsh punishment, including the death penalty, for some of the 15 army leaders and 500 followers who staged the uprising. Many could not help but notice that this was the same president who, earlier in his mandate, granted amnesty to "those responsible for the 1976 military coup `and the murder of thousands of people'" (Latin American Regional Reports: Southern Cone Report 27 Dec. 1990, 3). Menem's response was, however, that "one must look to the future and not compare events that took place 14 years ago with more recent ones" (Ibid.).

3.        CURRENT SITUATION

3.0          Introduction

Having dealt with past human rights violators in a way that left many people puzzled, Argentina remains besieged by widespread corruption, rampant poverty, growing crime rates, a judicial system that some believe is on the verge of collapse and a disintegrating economy (The New York Times 16 July 1990, A3). These factors combined with political uncertainty lie behind the desire of many Argentines to leave the country.

Argentina's political liberalization has not been accompanied by strong economic development. Economic growth and decline are regularly monitored with various economic indicators, among which are the widely-used Consumer Price Indexes (CPI). According to the International Monetary Fund (IMF), "Consumer Price Indexes are the most frequently used indicators of inflation and reflect changes in the cost of acquiring a fixed basket of goods and services by the average consumer" (Bureau of Statistics of the International Monetary Fund Nov. 1990, 13). IMF data shows that between 1985 and 1989 the CPI in Argentina rose by 619.3 percent and that between 1989 and the first quarter of 1990 it rose by 854.1 percent (Bureau of Statistics of the International Monetary Fund Dec. 1990, 95).

Argentines themselves believe that the extreme poverty, which is gradually spreading to all regions including the capital, is the origin of the recent increase in violence, in that "people steal in order to eat" (The New York Times 16 July 1990, A3). In July 1990, nine million people out of Argentina's 30 million were estimated to be living below the poverty line (The Sunday Times 8 July 1990). Confronted with rising poverty, due in large part to a breakdown of government structures, Argentines have also begun to lose faith in their judicial system as the crime levels have systematically risen over the past years.

3.1    Independence of the Judicial System

At a time when the number of crimes in the province of Buenos Aires alone nearly tripled between 1985 and 1989 and when on average each 100 arrests result in only 2.6 convictions, the judicial system is facing growing direct and indirect government interference (The Los Angeles Times 9 Sept. 1990).

3.1.1  Quiet Pardons

On 21 February 1991, President Menem used his presidential prerogative to pardon 20 common criminals who had been accused of crimes such as homicide, rape, extortion and armed robbery (Latin America Weekly Report 7 March 1991, 10). Menem's actions, although constitutionally legal, drew severe criticism. According to right-wing congressman Francisco Duranona, Menem's actions were yet "another demonstration of the executive branch's meddling in the judiciary's affairs" (Reuters 22 Feb. 1991). The ensuing political uproar forced President Menem to accept the resignations of Justice Undersecretary César Arias and Legal and Technical Secretary Raúl Granillo Ocampo (Ibid.).

President Menem has also undermined the independence of the Supreme Court by enlarging it from a five to a nine-member panel and by appointing a majority of its members (Americas Watch 1991, 83). According to senior officials, this move was necessary because "the Argentine government could not function without a Supreme Court that shared the government's own views and accepted its policies" (Ibid.).

3.1.2   Police Abuses: The Patti Case

Although considered by Americas Watch to be comparatively more professional than other Latin American countries' police forces, Argentina's police corps is now widely believed to be unable to offer adequate protection (The New York Times 16 July 1990). In July 1990, "opinion polls show[ed] that 20 percent of Argentines would not report a crime because they [did] not believe the authorities would take any notice" (The Sunday Times 8 July 1990). The case of senior police officer Luis Patti may provide some of the reasons for this mistrust. Patti was indicted in September 1990 on charges of the torture of two common criminals. Shortly after, the citizens of Pilar demonstrated in favour of Patti, as the mayor of Pilar, the governor of the province of Buenos Aires and President Menem "all expressed their high regard for this `efficient' policeman" (Americas Watch 1991, 81). Moreover, the prosecution judge Raúl Borrino and his family were repeatedly threatened. The case was eventually tried by another court and the charges dropped, causing many to fear "that other policemen thus could be encouraged to abuse prisoners and that other judges will think twice before investigating complaints of this sort" (Ibid.).

The executive director of Americas Watch, an authority on Argentina's judiciary, confirmed that the use of torture against common criminals in custody to extract confessions, is endemic in Argentina. According to him, statistics on deaths which occur under police custody are alarmingly high and one of the reasons for this is the nearly complete impunity which benefits policemen. The executive director added that although abuse is rampant, he does not believe it is government-led. Rather, the fact that it is tolerated signifies that the people who ought to control it are looking the other way. He also stated that in poorer areas where crime is more rampant, the police forces have a tendency to apply deadly force and later claim that those killed were shot during confrontations (Americas Watch 30 May 1991). This information could not be corroborated by additional sources currently available to the IRBDC.

3.1.3  Threats and Attacks on Members of the Judiciary

Another reason for the loss of faith in the judicial system is the fact that judges, lawyers, and prosecutors are not exempt from threats and violence. Those who prosecute perpetrators of human rights violations and police abuses are particularly at risk. According to the Lawyers Committee for Human Rights, cases of intimidation and threats against members of the legal profession are common occurrences in Argentina. In May 1990, the chambers of Judge Ricardo Anuch in the city of Salta were ransacked. In the course of a criminal investigation which might have implicated high provincial officials, he received numerous telephone death threats (Lawyers Committee for Human Rights 1991, 27, 28).

In another example, Judges Juan Ramón Makintach, Alberto Durna and Raúl Borrino, all associated with the Patti case, received death threats from the Comando de Interfuerzos Policiales Argentinas. "The `Comando' is termed a `parapolice' group because it acts with the complicity of the police which, at the very least, look the other way or, at worst, directly participate in their violence" (Ibid.). The existence of "parapolice" forces has been denied by the Ministry of the Interior, but a senior official "admitted that some police officials might be involved in instances of intimidation" (Ibid.). The executive director of Americas Watch, although aware that parapolice forces had been quite active in the 1970s, stated that he was not aware of a resurgence in their activities (Americas Watch 30 May 1991).

3.1.4    Corruption in the Judiciary

For its part, the judicial system has recently faced consecutive corruption scandals. Although corruption is found throughout Argentina, its impact on the justice system is particularly significant and has been recognized as such by the Menem government. On 7 January 1991, the government declared a "judicial emergency" and suspended all court cases involving the state for 120 days, in order to stem the widespread corruption. According to Menem's then Legal and Technical Secretary, Raúl Granillo Ocampo, deals are apparently being made between judges, lawyers, expert witnesses and plaintiffs in order to defraud the state and state companies by conspiracy (Latin American Weekly Report 24 Jan. 1991, 2). In the last decade, the state lost 240,000 court cases, and as of January 1991 state companies faced 60,000 court actions, which "if lost, could cost them as much as US$10bn" (Ibid.). With a judicial system plagued by corruption and burdened by government interference, the independence of the judiciary appears to have been compromised. Thus, the possibility of a fair trial in Argentina seems unlikely.

4.    FUTURE CONSIDERATIONS

Despite the use of pardons for political stability in 1989 and 1990, Argentina remains besieged by rising crime levels, a worsening economy, the rising influence of the military, and a government and judiciary plagued by corruption scandals. These factors could strain the precarious political stability resulting from the pardons; a stability essential to sustainable democracy.

On the other hand, though cognizant of the problems described in this paper, the Executive Director of Americas Watch believes that the justice system in Argentina is still, comparatively speaking, much more efficient than the systems in neighbouring countries. He also believes that the police forces, although renowned for their repressive tactics, still form a professional corps, which is usually free from political partisanship (Americas Watch 30 May 1991).

The recent developments in Argentina's political and socio-economic climate have led observers to note that "the discontent of the majority is growing faster than the rate of economic reform" (Latin American Regional Reports: Southern Cone Report 7 Feb. 1991, 8). Other observers have hypothesized that Argentina may be drifting towards a new politico-military arrangement and that it might:

...regress into some hybrid form of authoritarian democracy, in which leaders will push for economic reforms at the top while relying on the military and security forces to suppress mounting popular protest below (Ibid.).

With this potentially volatile situation, Argentina will remain under careful scrutiny in the months to come.

5.      BIBLIOGRAPHY

Americas Watch, Washington. 30 May 1991. Telephone Interview with Executive Director.

Americas Watch, Washington. 1991. Truth and Partial Justice in Argentina: An Update. Washington: Human Rights Watch.

Amnesty International. (AI Index: AMR 13/05/90). September 1990. "Argentina Missing Children Update."

Bureau of Statistics of the International Monetary Fund. International Financial Statistics. November 1990. Vol. XLIII, No. 11. Washington D.C.: International Monetary Fund.

Bureau of Statistics of the International Monetary Fund. International Financial Statistics. December 1990. Vol. XLIII, No. 12. Washington D.C.: International Monetary Fund.

         Human Rights Quarterly. February 1990. Vol. 12, No. 1. Crawford, Kathryn Lee. "Due Obediance and the Rights of Victims: Argentina's Transition to Democracy." Edited by B.B. Lockwood Jr. Cincinnati: John Hopkins University Press.

         Latin American Regional Reports: Southern Cone Report. 7 February 1991. "Menem's 'Dirty War' Pardons Fail to Satisfy Military Seeking Vindication." P. 1.

         Latin American Regional Reports: Southern Cone Report. RS-90-10. 27 December 1990. "Contrasting Treatment." P. 3.

         Latin American Weekly Report. WR-91-09. 7 March 1991. "Corruption Still Dogs Menem." P. 10. (NEXIS)

         Latin American Weekly Report. WR-91-03. 24 January 1991. "Corruption Acknowledged." P. 2. (NEXIS)

Lawyers Committee for Human Rights. 1991. In Defence of Rights. New York: Lawyers Committee for Human Rights.

         The Los Angeles Times. 9 September 1990, Bulldog Edition. "Crime Mounts and One Man Says 'No More'." P. A18. (NEXIS)

         The New York Times. 5 January 1991, Late Final Edition. "Fear Returns to Argentina." P. 21.

         The New York Times. 16 July 1990, Late Final Edition. "Argentines Thieves Slain, Igniting Debate on Justice." P. A3. (NEXIS)

Reuters. 22 February 1991, PM Cycle. "Argentine Cabinet Members Resign Following Pardons Dispute." (NEXIS)

         South America, Central America and the Caribbean 1991. 1990. London: Europa Publications Ltd.

         The Sunday Times [London]. 8 July 1990. "Killer Becomes Argentine Hero." (NEXIS)